Burden of Proof, PowerPoint Presentation

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.