Study Notes on Evidence in Romanian Civil Law
Concept and Regulation of Evidence ("Probele")
In civil legal relations, evidence becomes necessary when disputes arise regarding the existence or content of rights. The term "probe" is synonymous with "dovadă" and carries three meanings: the operation of presenting means of conviction to the court (broad sense), the legal means used to establish rights and obligations (narrow sense), and the resulting conviction formed by the judge. The main legal framework is the Codul de procedură civilă (Law no. ).
The Object and Burden of Proof
The object of proof consists of legal acts and facts that generate civil rights and obligations. While facts can be material or psychological, certain elements cannot be the object of proof: laws (—presumed known under the principle nemo censetur ignorare legem—), absolute legal presumptions, uncontested facts, and indefinite negative facts. The burden of proof typically lies with the plaintiff (actori incumbit onus probandi), though it may shift to the defendant if they make specific claims or file a counterclaim, as per Art. 249 C.pr.civ.
Admissibility and Conventions on Evidence
To be admitted, evidence must meet five criteria: it must be legal (not prohibited by law), plausible (tend toward real, non-absurd facts), useful (not for incontestable facts), pertinent (directly related to the dispute), and conclusive (of a nature to resolve the case). Parties may enter into conventions regarding evidence, provided they do not violate mandatory laws, public order, or good morals, and do not hinder the judge's active role.
Written Evidence (Çnscrisuri)
An "çnscris" is defined by Art. 259 N.C.P.C. as any writing or record containing data about a legal act or fact. Authentic deeds (Çnscrisul autentic) are prepared by public officials (e.g., notaries) and prove personal observations of the official until a plea of forgery (çnscrierea çn fals) is made. Private signature deeds (Çnscrisul sub semnătură privată) require the parties' signatures. Specific formalities include "multiplul exemplar" for bilateral contracts and the "bun și aprobat" formula for unilateral monetary obligations. Electronic deeds (Legea nr. 455/2001) are assimilated into private deeds if they use an extended electronic signature.
Other Written Means and Beginning of Proof
Other categories include professional registries, domestic papers, telegrams, and letters. If a writing makes a claim credible but lacks full formalities, it constitutes a "beginning of written proof" (Întimpul de dovadă scrisă), which must be completed by witnesses or presumptions.
Testimonial Evidence and Confessions
Witness testimony (mărturia) involves oral reports by third parties regarding facts they personally perceived. It is generally inadmissible for legal acts with a value exceeding lei or to contradict a written deed, except in cases of material/moral impossibility to write or loss by force majeure. Confession (mărturisirea) is the judicial or extrajudicial recognition of a fact by a party against their own interest. It is unilateral, generally irrevocable (except for excusable error of fact), and personal.
Presumptions and Expertise
Presumptions are logical deductions drawn from a known fact to establish an unknown one. These are either legal (—absolute or relative—) or simple (left to the judge's wisdom). Expertise (expertiza) is used when specialized knowledge (medical, technical, accounting, etc.) is required to clarify facts. While usually optional, expertise is mandatory in matters such as judicial interdiction for lack of discernment or certain birth registrations under Law no. .
Material Evidence and Administration by Lawyers
Courts may conduct on-site inspections (cercetarea la faȑa locului) or examine material evidence such as photos and recordings. Under Art. 360-382 N.C.P.C., parties may agree to have evidence administered by their lawyers or legal counselors within a standard timeframe of up to months. This procedure involves a formal program approved by the court, with lawyers hearing witnesses (without oath) and communicating documents directly. In this context, minors under and those without discernment must still be heard directly by the judge.