progetti
BGE 9 I 90 ΓÇó Federal court may independently assess evidence when cantonal courts do not
BGE 9 I 90Raccolta ufficiale del Tribunale federale (DTF) / Volume I3 mar 1883
In a divorce dispute between the spouses Capeder, the cantonal court had taken evidence on alleged assaults and threats but left the evidentiary result open because it considered the allegations irrelevant. The Federal Court held that, in such a situation, it may itself assess the evidence and establish the facts from the record. It reasoned that this case is equivalent to the one expressly regulated by Art. 30(4) of the federal judiciary act, where a cantonal court refuses evidence on relevant facts.
Art. 30(4) of the Federal Judiciary Act; independent fact-finding by the Federal Court where cantonal courts omit assessment of evidence on relevant allegations as immaterial; the denial of a cantonal evidentiary appraisal is to be treated like a refusal to take evidence on legally relevant facts. In such a case, the Federal Court is entitled to determine the evidentiary result itself on the basis of the file, including factual assessment (consid. 1).