20 March 2015, Kiev

Distribution of the Burden of Proof in Administrative Proceedings

Irmantas Jarukaitis

I. Specific role of the court in the process of proof during the administrative proceedings (I)

Active role of administrative courts in judicial proceedings (e.g., whether to initiate abtract legality review proceedings; refer the issue to

the Constitutional Court; require to present additional evidence, etc.): Art.81 LOAP: „When hearing administrative cases, judges must

actively participate in the collection of evidence, in the establishment of all significant circumstances of the case and must

make a comprehensive and objective examination thereof“

Why? 1. The necessity to ensure public interest (ensurance of the principle of legality of administrative acts); 2. to protect the interest of

weaker litigant (usually private persons do not have a choice, whether to enter public legal relations); 3. to take into account specific nature of legal

relations in certain fields

II. Specific role of the court in the process of proof during the administrative proceedings (II)

General rule and difference from civil proceedings:Art. 57 para 4: evidence are provided by parties to the proceedings and other participants of proceedings. If there is a need, the Court may propose to these persons to present additional evidence or to require submit additional documents or to require state officials give explanations

In Lithuania, no strict obligation (e.g., in Germany – no adversarial process at all), only right, but still ...

The consequence: the lack of evidence may be a base for a court decision only when there was not enough evidence, provided by parties and collected by court, to establish certain facts (A1-203/2005; A10-01/2007).

III. Distribution of the burden of proof (onus probandi): general aspects

Especially difficult, but important aspect, since correct disribution of the burden of proof may:

The knowledge about the burden of proof may pre-determine, whether parties will address the court at all

have the major impact on the outcome of the proceedings

IV. Distribution of the burden of proof (onus probandi): general aspects (II)

2 inter-related aspects:

A.Positive aspect – general duty to collect/submit evidence: all parties + the court itself are the subjects of the process of proofB.Negative aspect – becomes important in cases, when evidence, submitted by the applicant and respondent are not enough to establish the existence of certain facts/circumstances – in these cases decision is rendered against the party, which had the burden of proof in particular situation (A556-963/2009; A556-862/2010)

While in case of positive aspect it doesn‘t have the impact on the court judgment (it‘s not important, which subject submitted the evidence),

the negative apect answers the question, which party bears the risk of non-proof of certain circumstances (e.g., whether the employer has sent the request to trade union concerning dismissal of the member of trade union (14 days term and

presumption that trade union consented) A62-1007/2011)

V. Distribution of the burden of proof (onus probandi): general aspects (III)

General rule: every party must prove the existence of facts on the basis of which it forms its claims (A146-2329/2011)

Both in terms of procedural and substantial law:E.g., its up to the party asking to reniew the expired term of submission of the appeal to prove the existence of objective circumstances, which precluded timely submission of the appeal (A556-360/2012)

According to the Tax administration law, its up to the tax administrator to substantiate the calculated tax and related sums; if the tax payer disagrees with calculations of the tax administrator, it must substantiate the grounds of disagreement as regards those calculations (A261-360/2012)

As a rule, a party, which negates the existence of certain facts is objectively unable to do that, thus, it‘s up to the party, which argues that certain facts exist, to submit the evidence (A756-156/2012)

VI. Specific examples of distribution of the burden of proof (I)

Given the fact that administrative relations/cases are very different in nature, there maybe good reasons to depart from the general principle:

Some stem from legal acts, others – the product of court practice

State/public service;Taxation;Damages;Persons in detention;Asylum cases;

VII. Specific examples of distribution of the burden of proof: state service

The logic – employee (state officer) is a weaker party

If state officer suffers negative consequences, the burden of proof rests with the employer (state/municipal institution)

Disciplinary sanctions; dismissal; transfer to the other office (A6-2160/2006)

The fact that state institution fully paid his salary before transfer of policeman to other institution (A756-156/2012)

The question, if there were objective preconditions to fullfill the assignment in time (A438-1112/2009; the question whether the database was operational)

Exeptions from the exeption: e. g., the obligation to declare private interests (which party has the burden of proof to establish about the existence of certain private interest of a close person? (A492-1322/2012) – positive obligation to declare means the obligation to care about it – thus the BoP that you didn‘t know belong to you

VIII. Tax cases

If the content of the commercial operation is different, from that reflected in accounting books, on the basis of which the tax payer seeks the VAT deduction, and the tax administration has the grounds to believe the existence of tax evasion, the tax administrator has the right to disclose the true nature of commercial operation (A438-3582/2011)

If the tax payer grounds received revenue on the basis of contracts of a proper form or other official documents, its up to the tax administrator to proved that in reality the tax payer hasn’t received the revenue (A575-3582/2011)

Its up to the tax payer to prove the existence of circumstances, established by law, that there are grounds for exemption from the tax, reduced VAT tariff, exemption from fines (A556-364/2011)

IX. Damages cases

Three elements of public delict/tort;

According to court practice, it’s up to the applicant to prove the existence of damage and the amount of damage (both, pecuniary and non-pecuniary)

Still, if, after all the efforts of the applicant is not able to prove the exact amount of damages, it’s up to the court to calculate it (CC Art. 6.249) (A438-3420/2010 – state liability with regard to illegal building permits)

X. Detained persons

Weaker party with particularly limited ability to collect and present evidence:

“once deciding cases of such nature it is necessary to take into account into objective difficulties these persons face when collecting evidence about the imprisonment conditions, therefore, its not possible to adhere strictly to the principle, that a person must prove the existence of facts, on which it bases its claim. In essence it means that the obligation to submit a data about the conditions in prison rests on the respondent (e. g. Judgment of the ECtHR of 10 January 2012 Ananyev and others v. Russia; Judgment of 10 April 2014 of the Supreme Administrative Court of Lithuania No. A858-114/2014). Therefore, if the respondent is unable to produce such data, situation is judged in favour of the applicant, who claims that his rights were violated”.

XI. Asylum seekersThe ability of both the applicant and the respondent to collect and submit the written evidence: foreign country with no access to it

The privilege of doubt – Art. 83

If the asylum seeker provides consistent description of the situation/story, which, despite his/her sincere efforts, may not be confirmed by written documents, the data presented are evaluated in the favour of asylum seeker and its up to Migration Department to provide evidence to the contrary (A858-356/2014)

XII. Other types of cases:Provision of the information to public – institution, refusing to provide it (A525-419/2010)

Misleading advertising – its up to advertiser to prove that statements provided in advertising, are accurate and true (A556-997/2008)

It’s up to the Competition Authority to prove the existence of the infringement of competition law, but, if an undertaking wants to rely on exceptions, it’s up to the undertaking to prove the existence of conditions, under which exceptions are applicable (A858-1245/2012)

If there is a presumption – it’s up to party, negating it, to provide the prove that negates the presumption (A492-14/2012 – information about content of cosmetic product on the label)

Procedural consequences for a judge

The Court should look at the preliminary stage and evaluate what kind of dispute arised, what substantial legal provisions will be applicable – from that deduce the correct distribution of the burden of proof and draw attention to the parties, what facts they should prove, what are the consequences for not submitting the evidence

Draw attention to the fact that submitted evidence is not accurate or not enough informative; to suggest to submit additional evidence; if it’s not possible, to consider the necessity to collect evidence on its own motion.

Standard of proof

Civil proceedings: „balance of probabilities“ (3K-3-149/2004): if, after studying all the evidence, it is more probable, that certain fact exists, it is deemed to be established

Administrative proceedings: no clear general rule (different nature of legal relations), but usually should be more strict (public interest)

Economic sanctions (Competition; Alcohol, Tabacco, etc.) – similar to criminal cases (Art. 6 of the ECHR); presumption of innocense – „beyond reasonble doubt“

Sources:

The Supreme Administrative Court of Lithuania: http://www.lvat.lt/en/news.html

The Supreme Court of Lithuania: http://www.lat.lt/en/news.html

Thank you!Questions, comments?