Evidence in Civil Law - Sweden

Front matter

Lek 2

LOCALIS

Evidence in Civil Law - Sweden

Foreword

This publication is based on the Swedish report to the project Dimensions of evidence in civil procedure (Project DEECP: JUST/2011-2012/JCIV/AG/3434) with financial support from the Civil Justice/Criminal Justice Programme of the European Union.” The major objective of the project has been to explore whether there exists a common core of European Law of Evidence (and taking evidence in particular), and if it does, to describe its content and its most important points of discord among the national legal systems. By providing a clear picture of common core principles, the project can serve as a starting point for further harmonisation or unification processes in this field. A basic assumption of the project is that there can be no trust without a clear picture what courts do in matters of evidence, and how they discover the facts.

I would like to thank my former assistant Emmy Falck, LL.M., and doctoral candidate Anna Waldenstrém for their valuable contributions to the underlying

Swedish report.

Eric Bylander

> See the home page of the project, http://www.acj.si/en/presentation-evidence.

Lex- Evidence in Civil Law — Sweden =

E. Bylander LOCALIS Contents

Partinen o e tis ests ei a RATE eee A 1 1.1 Principle of Free Disposition of the Parties and Officiality

PrinCIple seerne erreen anaE iE aT O Weep cee EE EaR 1 1:4 Principle of Orality vavsssisssiosbenesrovestbössdosreessonenesssissnes aa a 6 1.6 Principle of Public Hearing... eee eee esse cece eeeeeeeeeeeeeeeeecessesaessaeenaes 7 1.7 Principle of Pre-trial Discovery s....sseresssrsrsrsrsrersrsrersrsrrsrersrrrrrnrerrrrr rr rr nr rna 8 2 General Principles of Evidence Taking s....sssessersrrsersrrosesrerersreresnrsrnnrrnrrn rna 8 2.2 Relevance of Material Truth s..sssssssssrssrsrrssesresrsrsrerrrsrsrrerrsrersrrsrer rr rr rr rn nr nr rn rna 9 3 Eyidence: in: General iimo aa r E 11 3.1 Value of Different Methods of Proof... eee ee cee cesecee cess ceeeeseeeneeees 11 3.2 The Minimum Standard of Proof... eee sees ceseceecesecneecseeeeeeneeees 12 3.3 Means Of PIOOE cescoscystscasesecasectestesadeiecbencvsessnucveeceendusctataduserestueesstasstecotnesh 12 3.5 Proving the Existence of Rights Arising Out of a Cheque or Bill

Or EXCMANBS evciedi ses e a O E REA R ERE 13 4.1 Main Doctrine Behind Burden of the Proof Rules... eee 14 4:22: Proof Standards sees sscccspessssezicsvesccestocs veeeveastedesedsetedeercessieevedenseastaveceusanect> 14 4.7 Court-initiated Evidence Collecting in Civil Cases ....ssssssrsrssrsssssrsrnsnn 16 4.8 Additional Submission of Evidence Allowed by the Court... 16 5 Written EVIdeNCO iavicsccsiesssesncseusvencdedhateesensdetebessetecncosctustedbstaceseseaveseuberecs 17 5.4 How Written Evidence is Taken... cece ceseesecse cscs cneeeeeeeeeeeeeeeeeerens 18 6 WANES SES oueon oe a ei E E EE E A Gees 19 6.1 Obligation to Testify... ee eeceesceeecesecesecsaecaeceesaeeeaeseeeeeeeeeeeearens 19

6.2 Witnesses are Summoned by Court sssssssssesssrsrrssrerrssrsrerrrsrerrrsrerrnnr rr rn nr rna 19 ii | Contents

Refusing the Role as a Witness sssmessesssreerssrerrsesreressrsresrsrsrrsrrsrerrrrrsrrnnr nr rn rna 20 Takingof Evidences ei e a E GTE Ee E R EE E 24 Taking Of: Evidences iv: ier E ere E EES EE TE E RE REEE Ea 24 The Hearns sses ia r E eaa EE EE EE EEE EE 26 Withesse Sai enseres ptis ea eE eere E E E EEE or E EPER EES 27 Expert- WITNESSES eoa taei A a oe REEE 27 Costs:and Lan gua ge siise seere eeta rE eso nesre eoero s E R Es eE sE 29 GOSS TE ESETT TEE 29 Unlawful Evidence... cece ceee aar rE KE oee eierne Er Iara, 32 Distinction Between “Illegally Obtained Evidence” and “Illegal

Lex- Evidence in Civil Law — Sweden =

E. Bylander Lo CALIS

Part I 1 Fundamental Principles of Civil Procedure

The Swedish law of civil (as well as criminal) procedure is regulated in The Code of Judicial Procedure (1942:740), hereinafter the Code.? The Code separates between matters amenable to out-of-court settlement (dispositiva tvistemal) and matters not amenable to out-of-court settlement (indispositiva tvistemål).

1.1 Principle of Free Disposition of the Parties and Officiality Principle

The principle of party disposition (in Swedish dispositionsprincipen) and the principle of the ex officio competence of the court (in Swedish officialprincipen) are two fundamental principles in the Swedish law of civil procedure.

These principles are not explicitly stated in the Code, but they are used in the legal doctrine, where they serve as a way to describe the party’s possibilities to control the procedure. According to the principle of party disposition, the court may, in matters amenable to out-of-court settlement, undertake a procedural measure only in accordance with a claim by one or both of the parties.* The principle of the ex officio competence of the court means that the court is obligated to undertake a procedural measure if the court finds it necessary for the process, regardless of the parties’ request. In general the first principle applies in cases amenable to out-of-court settlement and the second in cases not amenable to such settlement.

In the Swedish law of civil procedure, the principle of parties’ autonomy represents the gap between a complete principle of the ex officio competence of the court and a complete principle of the parties’ disposition. In the legal doctrine, the principle has been described as the procedural actions that the parties may take within the procedure with a binding force to the court.”

It is forbidden to decide extra et petitum according to Chapter 17 Section 3 of the Code, which applies to both matters amenable to out-of-court settlement and matters not amenable to out-of-court settlement.

>” The Code, in its 1998 composition, can be downloaded in English from http://www.government.se/sb/d/390/a/1540.

4 Ekeléf/Edelstam (2002), p. 58, and Lindell (2004), p. 30.

It should be noted, that the Swedish system for adjunction seldom takes its ground in firmly defined principles, but principles appear in decisions ad hoc. In Sweden, the application of principles is more practical than dogmatic, a way to apply principles which may be contrasted to the German legal system.

The possibility to introduce new facts and evidence is to a great amount depending on at which instance the question is raised. There is also a great difference between matters amenable to out-of-court settlement and matters not amenable to out-of-court settlement regarding the possibility to introduce new facts and evidence. Chapter 43 Section 10 of the Code regulates the preclusion that may occur at the main hearing, where the court may decide about preclusion if a party is delaying the process or otherwise does not run the process in a proper manner. The section states:

If, during the main hearing, a party amends a statement previously made by him, adds something thereto, or invokes circumstances or evidence that he has not mentioned prior to the commencement of the main hearing, that new material may be disregarded if it can be assumed that the party tries by his conduct to delay the trial or to surprise the opposing party or the party else acts in some other improper purpose or by gross carelessness.

Chapter 42 Section 15 of the Code and Chapter 42 Section 15a of the Code regulates preclusion in matters amenable to out-of-court settlement in the lower court. Chapter 42 Section 15 of the Code states:

If the matter is amenable to out of court settlement, a party may be directed to finally determine his action or defence and to state the evidence that he invokes if it is required in view of how during the disposal of the case he previously has asserted his action. After expiration of the time for such a statement, the party may not allege any new circumstance or any new evidence unless he reasonably proves that he has had a valid excuse for failure previously to allege the circumstance or evidence.

Chapter 42 Section 15a regulates the courts possibility to decide a time-limit for the preparation and the parties’ possibility to refer to new evidence after that time-limit.

Within the court of Appeal, preclusion is regulated in Chapter 50 Section 25 third paragraph of the Code, regarding matters amenable to out-of-court settlement. The paragraph states:

As to cases where the matter at issue is amenable to out of court settlement, in the court of appeal a party may invoke in support of his position a circumstances or item of evidence not previously presented, only if

1. he shows probable cause for not having been able to invoke the circumstance or item of evidence in the district court, or

2. he otherwise has had a valid excuse for his failure to do that.

Part I | 3

For the Supreme Court, preclusion is regulated in Chapter 55 Section 13 of the Code, which regulates both matters amenable to out-of-court settlement and matters not amenable to out-of-court settlement. The article states:

In civil cases a party may assert in the Supreme Court in support of his action a circumstance or item of evidence which has not previously been presented only if he shows probable cause for not having been able to invoke the circumstance or item of evidence in a lower court or otherwise has a valid excuse for failing to do so. A set-off defence initially asserted in the Supreme Court may be dismissed unless it can be considered in the case without inconvenience.

The requirement regarding new evidence is tightened in the higher courts compared to the lower courts.

According to new legislation, see Chapter 35 Section 6 of the Code, the parties are fully responsible to submit evidence, with the exception for matters not amenable to out-ofcourt settlement.

1.2 The Adversarial and the Inquisitorial Principle

According to Chapter 35 Section 6 of the Code, the parties are in matters amenable to out-of-court settlement, responsible for collecting evidence material. Within matters not amenable to out-of-court settlement, the court may collect evidence material. The adversarial and inquisitorial principles are both part of the Swedish legal terminology. They are mainly used to classify different procedural systems.

The adversarial principle (in Swedish den kontradiktoriska principen) is defined as a two-party process with mainly oral proceedings” and the inquisitorial principle (in Swedish den inkvisitoriska principen) is defined as where the court both investigates and adjudicates the case.’

Within the Swedish legal doctrine, the principle of negotiation (in Swedish forhandlingsprincipen) is also applied. The principle is applied in order to describe the activity that the parties may exercise within the process.

The court is allowed to decide to take evidence only in matters not amenable to out-ofcourt settlement, according to Chapter 35 Section 6 of the Code.

The court may, according to the Swedish law of civil procedure, give the parties substantive (materiell) or procedural (formell) guidance during the main hearing. Procedural guidance has a great importance and is a debated subject within the legal doctrine.’ The substantive guiding is, regarding the preparation, regulated in Chapter 42

Arbetsdomstolen [The Swedish Labour Court], AD 2004 nr 103. 7 Ekeléf/Edelstam (2002), p. 70.

Section 8 second paragraph of the Code: “During the preparation, the court shall proceed, depending upon the nature of the case, the issues in dispute to be elucidated and the parties to state everything that they wish to invoke in the case. By questions and observations the court shall attempt to remedy unclear and incomplete statements made by the parties”. Regarding the main hearing, the substantive guiding is regulated in Chapter 43 Section 4 second paragraph of the Code: “The court shall also make certain that the case is investigated according to its nature and that irrelevant matters are not presented. Through questions and observations the court shall attempt to remedy any unclear and incomplete statement”.

During the preparation of the main hearing, the court, according to Chapter 42 Section 16 of the Code, should prepare a written summary of the parties’ claims and objections such as these are understood by the court, if it is of benefit for the disposal of the case. That Section may be combined with Chapter 42 Section 15 and Section 15 a, or Chapter 43 Section 10 of the Code, in which preclusion is regulated (see 1.1 above), to know which facts that have been referred to. However, preclusion does not automatically occur if a claim or an objection does not appear on the written summary. The consequence of preclusion is that the court will disregard the precluded facts or material.

1.3 Hearing of Both Parties Principle (the Contradictory Principle)

The contradictory principle (in Swedish kontradiktionsprincipen) is an existing principle in the Swedish civil procedure law, which has become more important since the ECHR was incorporated within the national Swedish legislation in 1995. It should be noted, that the Swedish system applies the term den kontradiktoriska principen also to describe the adversarial principle.'°

The contradictory principle includes all decisions, and follows the definition that a defendant shall have the right to give one’s opinion regarding all circumstances. It should be noted that the principle only results in a right, and not an obligation to give one’s opinion. According to Chapter 42 Section 18 second paragraph of the Code, the parties shall be given an opportunity to give one’s opinion before the court concludes a decision. See for example in case law, NJA 1980 p. 635, where the Supreme Court quashed a decision from the District Court because one party had been conferred compensation for litigation costs without the adverse party had been notified about the claim.

The limitation of the parties’ opportunity to undertake preparatory acts can be deducted from Chapter 35 Section 7 of the Code, which states the limitations for the parties to submit evidence, and states in which situations the court may dismiss evidence. Chapter 35 Section 7 of the Code states:

Part I | 5

The court may also reject an item of evidence offered:

1. if the circumstance that a party offers to prove is without importance in the case,

2. if the item of evidence offered is unnecessary,

3. if the item of evidence offered evidently should be of no effect,

4. if the item of evidence offered can be presented in another way with considerably less trouble or costs,

5. if the item of evidence offered cannot be presented in spite of reasonable efforts and the court’s judgment or decision should not be delayed any longer.

It should be noted that the courts have developed a highly permissive attitude.

The parties have a right to be present during the taking of all evidence and the parties also have a right to be heard about the assessment of the evidence. Though, when the deliberation is written, the parties do not participate. Most of the time, the deliberation is held in camera.

The general rule is that a case is determined after a main hearing; see for example Chapter 42 Section 18 of the Code. This can be compared to Chapter 43 Section 2 of the Code where it is regulated who shall be present at the main hearing and what the consequences are if the parties are absent. If any of the parties is absent, the main hearing shall be cancelled or scheduled to a new date. Chapter 44 of the Code regulates parties’ absents.

The right for the parties to be heard is an underlying principle, which is expressed in individual rules in the Code. The principle has certain exceptions, for example if the plaintiff's statement does not constitute a legal basis for the case or if it is otherwise clear that the case is unfounded, see Chapter 42 Section 5 first paragraph of the Code. If this situation occurs, the court does not issue a summons. Another example of an exception from the principle is the possibility for the court to immediately impose a security measure to remain effective until otherwise ordered, if delay places the applicant's claim at risk.

Regarding preclusion, as an exception from the contradictory principle is Chapter 35 Section 7 of the Code applicable, when the court dismisses evidence. It is then not necessary for the court to hear the adverse party.

If the right for a party to be heard is violated, the consequence may constitute a procedural error with the consequence that a higher court sets aside the lower court’s decision. Those consequences are regulated either in Chapter 50 Section 28 of the Code or Chapter 59 Section | of the Code, depending on if the situation occurs before or after the judgment has been declared legally binding.

The principle of equal treatment (in Swedish likabehandlingsprincipen) is an overall principle in the Swedish legal system and is regulated in Chapter 1 Section 9, the

Instrument of Government.'! In the statement, it can be read out that the courts, administrative authorities and others performing public administrative functions in its work shall include everybody’s equality before the law and observe objectivity and impartiality.

If a party is absent from the procedure in a matter amenable to out-of-court settlement, a default judgment may be entered into by the court against the party missing, according to Chapter 44 Section 2 of the Code. A further consequence that may occur is a penalty of fine according to Chapter 44 Section 5 of the Code. According to Chapter 44 Section 1 of the Code and Chapter 44 Section 3 of the Code, the court may remove the case from the court’s list if one or both of the parties are absent. There is also a possibility for the court to determine a case despite of the parties’ absence, see Chapter 44 Section 7 of the Code. A default judgment according to Chapter 44 Section 7a of the Code may also occur if the defendant fails to obey a directive to submit a written answer.

1.4 Principle of Orality

The principle of oral proceeding (in Swedish muntlighetsprincipen) is one of the leading principles in the Swedish law of civil procedure. It is also called the principle of oral testimony in the Swedish legal doctrine. The principle of concentration’? and the principle of immediateness are the two other fundamental principles for the trial proceedings according to the Code. These principles shall be applied in all instances. "4 The principle of oral proceedings means that the court shall base its decision only on the facts that have been presented orally during the proceeding. The principle aims to create the best possible opportunities for the implementation of the principle of free assessment of evidence and especially the evaluation of evidence. Exception can be made, see for example Chapter 43 Section 5 of the Code, where it is stated that the parties may submit or read out written submissions and other written statements only if the court finds that it would facilitate the understanding of a statement or otherwise assist the proceedings. What has been stated during the preparatory proceedings may also be read out, if the statement that the party is presenting is divergent from the statement that the party did present during the preparatory proceedings, if the party refuse to speak or if there is any other special reasons.

Within the civil and criminal procedural law, the principle of oral proceeding is dominating, but written element has nevertheless a major role for the preparations before the main hearing. A trial is for example always initiated in written form. To be noted, within the administrative judicial procedure the situation is reverse and the main principle is written form, according to Section 9 the Administrative Court Procedure Act.

1! Regeringsformen (1974:152).

13 The principle of concentration means that the proceedings shall be as concentrated as possible; see Chapter 46 Section 11 of the Code.

'S Förvaltningsprocesslagen (1971:291).

Part I | 7 1.5 The Principle of Directness

In Swedish civil procedure law the principle of directness (In Swedish omedelbarhetsprincipen) is a valid principle, which is also named the principle of immediateness. The principle creates, as mentioned above, together with the principle of oral proceeding and the principle of concentration, the fundamental principles of the judicial process. The principle of directness is expressed in Chapter 17 Section 2 first paragraph of the Code and implies that the judgment shall be based only on the facts that have been directly presented at the proceeding. To be noted, Chapter 17 Section 2 first paragraph of the Code does not define the principle, the rule only states the consequence of the principle. In the legal doctrine, the principle has been described as that only the material that has been presented during the main proceeding may ground the decision by the court. The principle is divided into two parts, which includes that evidence shall be presented in its best form (which is considered to be orally according to Chapter 36 Section 16 of the Code) and also through the parties’ appearance in person. The principle applies to what the judgment shall be based on.!

There are exceptions to the principle. In higher courts, the main rule is that oral evidence is presented by video recordings from the lower courts which are played during the proceedings. The way to use modern technology within the trial has been a part of a major reform within the Swedish judicial system entered into force in 2008. The reform included a modernisation of the legal proceeding in general courts and changed several of the procedural rules in the Code. The aim of the reform was to create a modern system of judicial procedural that meets the requirements for legally secure, efficient and effective processing of cases and matters. '”

It is a normal procedure for the appellate court to take evidence, and the appellate court is also allowed to evaluate evidence.

1.6 Principle of Public Hearing

The main rule in the Swedish law of civil procedure is that anyone is allowed to be present and take part of a court hearing, according to Chapter 5 Section | of the Code and Chapter 2 Section 11 of the Instrument of Government.

The principle of public hearing’? applies to court hearings and the hearings that the parties are directed to appear to. The writings in a proceeding are also public as a result of the Swedish principle regarding public access to public records.

The principle of public hearing is not defined in the Code but has been given the meaning in legal doctrine that the main rule is that court hearings are open to the public for them to be present at and take part of. °

'8 Or principle of publicity according to Lindell (1988), p. 31. 1 Edelstam (2001), p. 25.

When a court hearing is open to the public the press and other media are free to be present and report from the hearing. However, photographs etc. must not be taken in the courtroom. Video recordings are for the use of the courts only. According to Chapter 5 Section 9 second paragraph of the Code the court may prohibit sound recording or transmitting of an examination by phonetic means, if it appears that the recording will so embarrass the person being heard as to be detrimental to the inquiry.

The exceptions to the principle of public hearing are stated in Chapter 5 Section 2 of the Code and Chapter 5 Section 1 second to fourth paragraph of the Code. The exceptions apply to cases of extraordinary importance, for example when underage or mentally disturbed persons are involved.

1.7 Principle of Pre-trial Discovery

The principle of pre-trial discovery does not exist in the Swedish law of civil procedure. Reservation of evidence, evidence tracing and acquisition of evidence are though permitted.

In conclusion, it may be added that principles as such, have a subordinated role in the Swedish law of civil procedure. To be noted are the principles of legality and delegation. These are in close relation to the above-mentioned principles of party disposition and the ex officio competence of the court which gives the parties the right to control the judicial process. The principles are not normatively decisive, but are used more in a descriptive way.

2 General Principles of Evidence Taking 2.1 Free Assessment of Evidence

The principle of free assessment of evidence is a valid principle in the Swedish law of civil procedure, including both production of evidence and evaluation of evidence and is stated in Chapter 35 Section 1 of the Code. It follows from that section that the court shall take into account everything that has occurred in accordance with the dictates of its conscience and after that determine what has been proved in the case. The principle have existed in the Code since 1948 but prior to that year developed in case law.”

Regarding if the courts are bound by the party’s disposition, the parties cannot conclude an agreement about a certain fact to be given a certain evidential value. In matters amenable to out-of-court settlement, the parties are however allowed to agree that a certain fact does not have to be proved. This is according to Chapter 35 Section 3 of the Code stating: “If, in a case amenable to out of court settlement, a party admits a certain circumstances, his admission constitutes full proof against him.”

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The court has the right to evaluate the evidence as long as the parties have not agreed about the existence of a certain fact, see Chapter 35 Section 1 of the Code and Chapter 35 Section 3 of the Code.

The court is, according to Chapter 35 Section 1 of the Code, bound to make an evaluation “dictates of its conscience” (in Swedish en samvetsgrann prövning). This is a sort of standard for the courts’ evaluation, which means that the evaluation cannot be based on the individual opinion of one judge but has to be in accordance with the general opinion of the court and be acceptable to other reasonable individuals.”'

This necessary condition has been developed in the legislative history, case law and legal doctrine. However, the question has received most attention regarding criminal procedure.”

The Swedish law of civil procedure has only a small number of formal rules to regulate assessment of evidence. It is stated in Chapter 35 Section 1 second paragraph of the Code “as to the effect of certain kinds of evidence, the specific provisions thereon shall govern”.” This statement opens up for an impact of, for example EU-legal instruments, regarding these questions.

The principle of free assessment of evidence implies that no limitation is stated in the law regarding the knowledge resources that may be used to find out the truth and also that the court, when evaluating the evidence, is not bound by legal rules; see below.”

2.2 Relevance of Material Truth

The Swedish system has a principle of material truth, although the principle is applied within the limitations regarding the principles discussed above. The courts responsibility concerning the material truth is regulated in Chapter 42 Section 8 second paragraph of the Code and Chapter 43 Section 4 second paragraph of the Code; see the discussion above.

The principle of material truth is most dominant in cases where a third party may be affected and the parties are therefore not entirely free to conclude agreements out of court. However, during the evaluation of evidence, the principle of material truth is a guiding principle in all cases. Within matters not amenable to out-of-court settlement, where the court may apply its ex officio competence to inherent evidence, the material truth will sought to be clarified to a greater extent. This compared to matters amenable to out-of-court settlement, where the court only forms its decision from the facts that the parties have presented.”

2 See NJA II 1943 p. 444, where the standard comes to an implicit expression.

” For example, this regards agricultural lease; see Chapter 9 Section 28 of The Land Code (Jordabalken, 1970:994); see further 5.2 below.

Regarding matters amenable to out-of-court settlement, the principle does not have a major importance. Though, the principle of free assessment of evidence is of principle held, which is meant to guarantee a certain measure of material truth.

There are only a few limitations within establishing the material truth. One example is the limitation within the obligation to give evidence according to Chapter 36 Section 5 of the Code and Chapter 36 Section 6 of the Code, which concerns secrecy within a certain circle of officials and relatives. There is also a limitation regarding the obligation to produce a written communication according to Chapter 38 Section 2 of the Code:

Anybody holding a written document that can be assumed to be of importance as evidence is obliged to produce it; in criminal cases, however, such an obligation is not imposed upon the suspect or any person related to him as stated in Chapter 36, Section 3.

Neither a party, nor any person related to him as stated above, is obliged to produce written communications between the party and such a related person or between such related persons. Neither a public official nor any other person referred to in Chapter 36, Section 5, may produce a written document if it can be assumed that its contents is such that he may not be heard as a witness thereto; when the document is held by the party for whose benefit an obligation of confidentiality is imposed, that party is not obliged to produce the document. The provision in Chapter 36, Section 6, as to the privilege of a witness to refuse to testify shall correspondingly apply to the holder of a written document if the content of the document is such as referred to in the said Section.

The obligation to produce written documents does not extend to jottings or any other like personal notes prepared exclusively for one's private use unless extraordinary reason exists for their production.

In addition, there are also limitations within the selection of evidence.

Regarding provisions allowing for determination of the material, there is in the Swedish law of civil procedure a general obligation to give evidence, which is stated in various sections in Chapter 36 of the Code. There is no general obligation to be an expert witness, see Chapter 40 Section 4 of the Code. According to Chapter 38 Section 3 of the Code, there is however an obligation to produce a written communication as evidence, and there is also an obligation to provide an object for inspection for view, see Chapter 39 Section 5 of the Code.