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How can I prove my case?

The claimant – the person bringing a legal case – must provide evidence to prove their claims against the defendant.


The burden of proof: who has to bring evidence?

In a civil case:

The person who has a claim (the claimant) is the person who starts legal action: that means you. You must provide evidence to support your claim.  Your evidence must show the court that the defendant (the person you are taking legal action against) is, for example, responsible for damages you suffered. You will lose your case if you cannot prove this.

In a criminal case: private prosecutions

Usually, the burden of proof that a criminal offence was committed rests with the public prosecutor, a state official, who relies on investigative authorities like the police to collect evidence. The victim also has a role in providing evidence, such as testimony, documents, etc.

However, if the public prosecutor refuses to bring a charge in the case, some jurisdictions in certain circumstances allow individuals to bring charges as private prosecutors. If the circumstances allow, you could take a case to court as a private prosecutor. In such a case, it is up to you to collect evidence for the court instead of the public prosecutor.


What do you have to prove?

In a civil case:

Civil law is a broad area and covers, among other things, issues of causing damages, status of persons (for example, related to family and reproductive rights), validity of contracts, labour law relations, etc.

In a civil law case involving damage, first you need to prove that you have suffered damage. This damage can be financial, environmental, physical, psychological, etc.

Second, you then need to prove that the person against whom you have a claim acted or failed to act (acts of commission or omission) and thereby caused the damage.  An example of an act of omission would be if a company whose activities had caused serious disruption to the local community had failed to assess the likely impact of their actions in advance.

Third, you must show that the fault of this person contributed to the damage you suffered. It does not have to be the main cause or the unique cause of the damage but it must be linked.

Keep in mind that the more evidence you can find the better.

In cases without damage, such as invalidity of contracts, there are other requirements you have to prove. This could include irregularities when the contract was concluded (for example, the person who signed the contract was mislead, or forced to sign the contract), or the content of the contract may be contrary to the law.

In a criminal case:

The investigative authorities have to prove all elements of the criminal offence, and that these elements were committed by the accused. These elements depend on the particular criminal offence as defined in the criminal code. For example, if the law defines theft as “the taking of another person’s property without that person’s permission, with the intent to deprive the owner of it”, a prosecutor would need to prove three elements: 1) that property was taken from another person; 2) that the person did not give permission; and 3) that the property was taken with intent to deprive the owner (and not, for example, by accident).

In most countries, each element of the offence must be proven “beyond a reasonable doubt” before the defendant can be convicted.

If you plan to file a criminal complaint, you can maximise the chance that the case will be taken forward by the prosecutor by analysing which elements the prosecutor will need to prove, and providing as much evidence for each element as possible.


How to gather evidence

Collecting evidence takes time and may involve contacting and meeting people (victims, witnesses, experts…), or going to the place where the wrong was committed. For example, if there is environmental damage, you will need the relevant equipment to be able to gather and save evidence.

While collecting and saving evidence to support your case, you have to respect the law and the rights of others. Therefore collecting evidence does not justify the use of fraudulent means. In criminal cases the criminal procedure laws set stringent criteria on what makes a piece of evidence lawful.

If you try to obtain evidence to support a criminal procedure you have to be very careful, as the violation of these rules may entitle the courts to refuse what you collected to be used as evidence.


What kind of evidence?

There are different kinds of evidence. The main ones are

a) Documents: All official documents you have in your possession should be considered important: contracts, letters from the administration, assessments or certificates, etc.

b) Correspondence: The correspondence (emails or letters) you may have with different actors (victims, the defendant, administration, organisations…) can constitute evidence. It is very important to write down all the meetings you have with the parties involved in the case, and make them sign the meeting minutes. For example, if you have a meeting with a company, it is important to write a report of all the commitments made in the meeting, and have the parties sign it, so that you can later ask them to comply with those commitments.

c) Testimonies: Testimonies are declarations made by the victims or witnesses, asserting the existence of some facts. They might be written or spoken/oral. While collecting the testimonies, you also have to register the identity of the person who is testifying, by taking her name and identity information and having her sign the testimony. If the person who testifies wants her identity to be kept secret, you still need to have her identity information, but you can ask the judge not to reveal this information to the accused/defendant.

d) Medical certificates: If the damage is physical, a medical certificate, made by a doctor or other medical professionals, stating that the victim suffers an injury can be useful. The certificate should then describe the damage and its probable cause.

e) Reports: Research by experts can also be very useful. The report can either be an existing report written for another purpose, or you may ask someone independent to write a new report. . Bear in mind that this latter case can carry high financial costs.

f) Photographs and videos: The date has to be indicated on the picture. The date may be registered electronically, or you can place a daily newspaper within the image to show the date the picture was taken. It is also important that the picture or the video can identify the place where it was taken; it should be taken with something unique from this place, which can testify that the pollution, for example, which appears in the picture, is in the place stated and not in any other. You could, for example, take the picture of a truck with the company’s name on it, or an identifiable building of a town next to the element you want to show on the picture or the video. You could also hold a GPS device in the picture, showing the coordinates.

g) Elements from the internet: You can use websites and other electronic information found on the internet, by saving the address on a document, copying the article, printing it or even by taking a screen print. Make sure to make a note of when the print was made.

To be sure these elements are kept safe, save copies in electronic and paper format.


The financial cost

Collecting evidence has a financial cost that you will need to take into account when deciding if you are going to undertake litigation.  For example, making samples of pollution has a high cost of analyses.

Transport to the field can also represent a cost. You may also have to pay the transport costs for witnesses so that they can come to you.

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