Special remarks on the Procedural Law tendencies for fact finding and evidence, under the right of access to justice

Evangelia ASIMAKOPOULOU

Authors

Evangelia ASIMAKOPOULOU Post Doc Researcher of International Procedural Law in Aristotle University of Thessaloniki.

Keywords:

Claims; Evidence; Information asymmetry; Efficiency; European law; Case management; Burden of proof.

Abstract

This paper outlines the modern methods and the recent developments in the field of procedural law that are related to fact finding (claims and evidence). Litigation claims and evidence procedure are strongly related due to the general rule “I prove what I invoke”. The update character of this topic is confirmed by the fact that even in ELI/UNIDROIT provisions for Building European Rules of Civil Procedure there is special reference to the fact that the main purpose of each litigation procedure is determined by the parties’ allegations and these allegations are strongly related to the object of evidence procedure[1]. The problem that may arise is the potential difficulty of the litigant’s parts to have access to evidence and information, in order to present their rights before the court. This can lead further to a general difficulty of real access to justice, which is safeguarded by Article 6 par. 1 of ECHR and Article 47 of Charter of Fundamental Rights. The reference to these two articles is the basic method for approaching the crucial topics is the recourse to the scope of procedural rules, under the interpretation light of access to justice and due process. Under this light, procedural law becomes the means for the efficient implementation of substantive law.

References

Andrews, The modern civil process (Mohr Siebeck, 2008).

Asimakopoulou, The modern approach of fact finding evidence in civil procedure, p. 57 et seq. (Sakkoulas 2017, in Greek).

Asimakopoulou, Claims for damages for the infringement of free competition law, procedural aspects of law 4529/2018, especially fact provoking and evidence (Dir. 2014/104/EU) (Sakkoulas Publications 2017, in Greek).

Düsterhaus, Constitunalisation of European Civil Procedure as Starting Point for Harmonisation, in The future of European Law of Civil Procedure”, ed. by F. GASCON INCHAUSTI/B. HESS (Intersentia 2020), p. 69 et seq.

Gaier, Der modern liberalle Zivilprozess, NJW 2013.871.

Garcia, Harmonising Access to Information and Evidence: The Directives on Intellectual Property and Competition Damages, in “The future of European Law of Civil Procedure”, ed. by F. Gascon Inchausti/B. Hess (Intersentia, 2020).

Hess, Europäisches Zivilprozessrecht (De Gruyter, 2020).

Laumen/Prütting, Handbuch der Beweislast (2016, Carl Heymans Verlag).

Lianos/Davis, Damages Claims for the infringement of EU Competition Law (Oxford, 2015).

Makridou/Diamantopoulos (editors) “The law of evidence in Spanish and Greek Civil Procedural Law”. Volume of International Conference which took place in Thessaloniki, Greece (April 2018), in collaboration with Prof. Fernando Gascon Inchautsi και Prof. Enrique Vallines Garcia (ed. by Sakkoulas Publications 2018, published on IAPL website: https://www.iaplaw.org/images/PDF/Greek-and-foreign_Vol.-4.pdf

Makridou/Diamantopoulos (editors) Relations between judges and parties in German and Greek Civil Trial (Sakkoulas Publications 2020, published on IAPL website https://www.iaplaw.org/images/PDF/Greek-and-foreign_Vol.-5.pdf.

Rosenberg/Schwab/Gottwald, Zivilprozessrecht (Beck 2010).

Trouli, The White Paper on Compensation Claims for Violation of Antitrust Law, Digesta 2010, p. 176 et seq. (in Greek).

Van Rhee and Uzelac, Revisiting procedural human rights (Intersentia, 2017)

Uzelac and Van Rhee, The European union and the national civil procedure (2016).

Van Rhee and Uzelac, Evidence in Contemporary Civil Procedure, Fundamental issues in a comparative perspective (Intersentia, 2015).

Van Rhee and Uzelac, Civil Justice between Efficiency and Quality: From Ius Commune to CEPEJ (Intersentia, 2008).

Van Rhee and Uzelac, Access to justice and the judiciary. Towards new European standards of Affordability, Quality and Efficiency in Civil Adjudication (Intersentia, 2009).

Verkerk, Fact Finding in Civil Litigation (Intersentia, 2010).

Walton Burden of Proof, Presumption and Argumentation, Carl Heymans Verlag, 2016.