Taking of evidence

If you initiate legal proceedings, it is usually crucial to present evidence to the court in order to prove your claim.


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Taking of evidence in civil proceedings is not restricted to the boundaries of a Member State. Sometimes, it may be necessary to take evidence in a Member State other than the one in which you are resident. For example, it may be necessary to hear witnesses or experts in other Member States, or the court may have to visit a scene of occurrence situated in another Member State. With regard to cross-border taking of evidence within the European Union, judicial cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters is regulated by Regulation (EC) No 1206/2001 of 28 May 2001.

Related links

Taking evidence – notifications of the Member States and a search tool helping to identify competent court(s)/authority(ies)

Taking evidence by videoconferencing

Practice guide for the application of the Regulation on the Taking of EvidencePDF(74 Kb)en

Practical guide on using videoconferencing to obtain evidence in civil and commercial mattersPDF(724 Kb)en


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Last update: 16/11/2017

Taking of evidence - Belgium

Please note that the original language version of this page French has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The Belgian legal system differentiates between civil law and commercial law. Commercial law is a specific law for traders, while civil law relates to ordinary law.

The law of evidence under civil law can be found in Section 1315 et seq. of the Civil Code (Burgerlijk Wetboek). It is a closed system with strictly regulated forms of evidence (see Section 5a for details).

The commercial law of evidence can be found in Section 25 of the Commercial Code (Wetboek van Koophandel). The most important feature is the openness of the system and the freedom as to forms of evidence in commercial undertakings. Section 25 of the Commercial Code states: ‘In addition to the forms of evidence allowed under civil law, trade commitments can also be proven by witnesses in all cases where the court judges that this is to be allowed, apart from the exceptions stipulated for special cases. Purchase and sale can be proven by means of an accepted invoice, without prejudice to the other items of evidence admissible under commercial laws’.

Procedural aspects of evidence in civil and commercial matters are governed by Section 870 et seq. of the Judicial Code (Gerecthelijk Wetboek). Section 876 of the Judicial Code stipulates that the court must judge the dispute before it in accordance with the rules of evidence that apply to that type of dispute. The dispute will be either civil or commercial.

Evidence of a fact, a statement or an allegation must be submitted by the party relying on it. A party requesting the performance of an obligation has to prove that the obligation exists. Conversely, a party claiming to be absolved from an obligation must submit evidence of payment or of the fact that absolved it from its obligation (Section 1315 of the Civil Code). In legal proceedings each party must submit evidence of the facts that it puts forward (Section 870 of the Judicial Code: ‘actori incumbit probatio’). It is then up to the opposing party to refute the evidential value of these facts, where this is possible and permitted.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Provided there are no objections on grounds of public policy and national security, all facts may be proven. There are three restrictions on the right to produce evidence during the proceedings. Firstly, the fact to be proven must be relevant. Then the fact to be proven must be conclusive, that is to say that it will contribute to convincing the court of the decision to be reached. Finally, the law must allow the submission of evidence to prove certain facts: personal privacy, professional confidentiality and privacy of correspondence, for example, must not be infringed.

Presumptions are generally rebuttable by the opposing party. Only irrebuttable presumptions (‘juris et de jure’) cannot be challenged; it is even illegal to provide evidence to rebut them. Rebuttable presumptions (‘juris tantum’) can and may be challenged by evidence to the contrary: the forms of evidence acceptable here are regulated in civil law but not in commercial law.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The court must be convinced of the points submitted by the parties. The court must be convinced on the basis of the evidence and its credibility. If the court comes to the conclusion that the point submitted to it can help settle the dispute and that the point as submitted reliably reflects the truth of the matter, it attributes evidential value to the point. It is only when the court has attributed evidential value to some point or other that it can properly be regarded as evidence

Evidential value is somewhat subjective, whereas actual proof is strictly objective. Status as proof depends on the reliability that the evidence is required to have. Evidence will be legally regarded as proof only if it has an adequate level of reliability, since the court is, after all, deprived of its discretion. This is the case of documentary evidence. If the court interprets the content of a document that has been obtained lawfully in a manner that is incompatible with its actual wording, it violates the status of formal documents as proof. The losing party can rely on this as a ground for an appeal to the Court of Cassation.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

A party making an allegation must be able to prove it. In some cases the judge can instruct a party to use a particular form of evidence, as in the case of the officially imposed oath (Section 1366 of the Civil Code). The court may, subject to strict conditions, require a party to make a statement under oath, either in order to make the settlement of the dispute dependent on it or simply in order to determine the amount to be awarded.

The court may question the parties and order witnesses to be questioned, except where the law forbids this (Section 916 of the Judicial Code). It can also commission an expert report to determine specific facts or to provide it with technical advice (Section 962 of the Judicial Code).

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Investigative measures must be applied for by one of the parties in the form of a principal action and an interim action. The court's subsequent ruling may grant or refuse the investigative measures requested, giving reasons.

In the case of a handwriting comparison (Section 883 of the Judicial Code) or forgery investigation (Section 895 of the Judicial Code), the court orders the parties to appear before it (with or without legal representation) and to bring with them all deeds, documents and items to be compared, or the document that is suspected of being a forgery. The court can deal with the matter immediately or can file it with the registry, and then carry out its own investigation or consult an expert. The court ultimately gives judgment on the handwriting comparison or the forgery investigation.

Where a party offers to provide evidence by way of one or more witnesses, the court may allow the evidence to be submitted if it is admissible (Section 915 of the Judicial Code). Unless the law forbids it, the court may order the witnesses to be questioned. The witnesses are summoned by the court registrar at least eight days before the date of their hearing. They must take the oath and are questioned individually by the judge. The court may put questions to the witness of its own motion or at the request of one of the parties. The testimony is taken down in writing, read out, corrected and amplified if required, and the hearing of the witness is then closed.

The court may order an expert investigation in order to resolve or avoid a dispute. The investigation my only relate to factual findings or technical advice (Section 962 of the Judicial Code). The expert undertakes his mission under supervision by the court. The parties provide the expert with all requisite documents and meet all reasonable demands from him. The report must be presented by a date set by the court order. If the report conflicts with the court’s own firm conviction, the court is not obliged to follow the expert’s advice.

The court, of its own motion or on application by the parties, may order an investigation in situ (Section 1007 of the Judicial Code). The investigation, at which the parties may or may not be present, will be conducted by the judge ordering it or by a person officially charged with conducting it. An official report of all the activities and findings is produced and transmitted to the parties.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court is never obliged to accept a party's request for investigative measures. But if an official instruction is transmitted to a judge, he must carry it out (Section 873 of the Judicial Code).

2.4 What different means of proof are there?

There are five types of evidence under (common) civil law: written evidence, testimony by witnesses, presumptions, confessions by parties, and oaths (Section 1316 of the Civil Code).

Written evidence (Section 1317 of the Civil Code) can be submitted either by authentic instrument or by private instrument. An authentic instrument is an instrument that has been executed in the statutory form by a competent public officer (for example a notary or a registrar) and is considered by the parties and by third parties to be conclusive evidence of the agreement contained therein. An approved private instrument, which has been signed by all the parties in question and has been drawn up in as many copies as there are parties, is considered by the parties to be conclusive evidence. A written instrument must be drawn up for cases with a sum or value of more than € 375 (Section 1341 of the Civil Code).

Testimony by witnesses (Section 1341 of the Civil Code) is not admissible to contradict or amplify the content of written documents. However, where there is only prima facie written evidence, or where it was impossible to draw up written evidence, the testimony of witnesses is accepted.

Presumptions (Section 1349 of the Civil Code) are conclusions that the law or the court makes on the basis of a known fact in order to determine an unknown fact. Presumptions cannot compromise the content of written instruments, but can –like witness testimony– supplement prima facie written evidence and replace written evidence that could not be drawn up.

The confessions of the parties (Section 1354 of the Civil Code) are either judicial or extrajudicial. A judicial confession is a declaration made before the courts by a party or by its specific authorised representative which can be relied on against the person making it. An extrajudicial confession is not subject to any procedural requirements.

One party may be required by the other to swear an oath (decisive oath) (Section 1357 of the Civil Code), or this may be ordered by the court. In the case of the decisive oath, the oath only constitutes evidence in favour of or against the person who required the oath to be sworn.

Evidence in commercial matters (Section 25 of the Commercial Code) is unregulated, but includes a specific form of evidence, namely the receipted invoice in the case of contracts of sale. A trader can always use a receipted invoice to create valid evidence, whereas other written documents must emanate from the opposing party if they are to serve as evidence..

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Witnesses testimony is regulated as an independent form of evidence by the Civil Code; the procedural aspects of the evidence are included in the Judicial Code. The expert investigation is solely a way of furnishing proof and is regulated in the Judicial Code. The parties can ask the court to call witnesses, but cannot designate experts of their own motion. Only the court can do that..

Written evidence has evidential value and the court must respect its content, but the same does not apply to expert reports and opinions. If the report or opinion conflicts with the judge’s own convictions, he is not obliged to follow it (Section 986 of the Judicial Code).

2.6 Are certain methods of proof stronger than others?

There is a hierarchy in the regulated forms of evidence. Confessions and oaths rank highest. A written instrument always ranks higher than witnesses and presumptions. Authentic documents (deeds) constitute conclusive proof as between the parties and in relation to third parties, whereas a recognised private document constitutes conclusive proof as between the parties. Witness testimony and presumptions may be relied on only if the documentary evidence is incomplete or if it is impossible to produce documentary evidence of the obligation to be proved.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Depending whether the fact is classified as being a civil or a commercial matter, the law of evidence is either regulated or unregulated. Under civil law, an authentic instrument or a private instrument must be drawn up for all matters and transactions exceeding the sum or the value of € 375 (Section 1341 of the Civil Code). Only this instrument can serve as evidence; testimony and presumptions are not admissible. In commercial matters, by contrast, evidence from testimony and presumptions are, in principle, admissible to counter or supplement the content of instruments.

2.8 Are witnesses obliged by law to testify?

No, witness examination takes place at the request of the parties or is ordered, ex officio, by the court (Section 915-916 of the Judicial Code).

2.9 In which cases can they refuse to give evidence?

If a witness is summoned who submits that he has legally valid grounds for declining to give evidence, the question is put to the court. The witness’s business secrecy obligations are regarded as a valid ground, among others (Section 929 of the Judicial Code).

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A person summoned as a witness is obliged to appear. If he does not appear, the court, on application by one of the parties, may summon him by writ served by a bailiff (Section 925 of the Judicial Code). A fine can be imposed under criminal law on a person summoned as a witness who fails to appear (Section 926 of the Judicial Code).

2.11 Are there persons from whom evidence cannot be obtained?

Witness testimony is invalid if given by a person who is not legally competent to do so (Section 961(1) of the Judicial Code).

A minor under the age of fifteen may not be questioned under oath. His statements can only be used as information (Section 931(1) of the Judicial Code).

A minor who has the requisite capacity of discernment can be questioned by the judge or by a person appointed by the judge in any proceedings concerning him, either at the minor’s own request or by order of the court, though in the latter case the minor may refuse to be questioned (Section 931(3) to (7) of the Judicial Code).

Blood relatives in the descending line cannot be questioned in cases where their blood relatives in the ascending line have opposing interests (Section 931(2) of the Judicial Code).

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

The parties cannot address or interrupt the witness directly, but must always address the judge (Section 936 of the Judicial Code). The judge can, either ex officio or at the request of a party, put all the questions to the witness so that the evidence can be clarified or supplemented (Section 938 of the Judicial Code).

Indirect testimony is valid; this is not opposed by any statutory provision or any legal principle. In addition, Section 924 of the Judicial Code stipulates that it is possible for a judge to decide, in the case of witnesses who are unable to appear in person, to take evidence at the place where the witness actually is.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Evidence that is obtained unlawfully may not be used during the proceedings. The judge must therefore disregard such evidence when making his judgment. Evidence obtained in a way that constitutes a breach of privacy, professional secrecy or privacy of correspondence is unlawful and inadmissible.

3.2 As a party to the case, will my own statement count as evidence?

Written documents emanating from a party itself may not be used as evidence for that party. Only in commercial law can an invoice (that has been accepted by the customer) in a sales transaction be used as evidence by a trader to prove his own case, even though it is a document he issued himself. Properly kept accounts can be accepted by the court as evidence of transactions between traders.

A confession by a party is a declaration made before the courts by the party itself or by its specially authorised representative. It constitutes conclusive evidence against the person who made the confession.


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Last update: 18/07/2014

Taking of evidence - Germany

The language version you are now viewing is currently being prepared by our translators.
Please note that the following languages: German have already been translated.

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The rules governing the burden of proof depend on the law relied on in the claim, i.e. the substantive law. The general principle is that each party must prove the facts in their favour. Some rules about the burden of proof are also expressly laid down in statute law.

If there is still doubt about an essential factual point after all the procedurally admissible evidence has been exhausted, a decision has to be taken about where the burden of proof lies. The party that bore the burden of proving the fact that has been left in doubt will then fail in its submissions on that point.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Certain facts may be exempted from the burden of proof in one of two ways: the burden of proof may be reversed, i.e. shifted from the party on whom it would otherwise rest to the opposing party, or the burden of proof that rests on one of the parties may be relaxed..

1. Reversal of the burden of proof

The burden of proof can be reversed, and shifted from the party on whom it normally falls to the opposing party. To some extent, the statutory wording establishes a distinction between a general rule and an exception: the party invoking an exception bears the burden of proof. For example, the legislation generally assumes the good faith of a buyer under Sections 932(1), first sentence, 892(1), first sentence, and 2366 of the Civil Code (Bürgerliches Gesetzbuch). The reversal of the burden of proof is of particular significance in cases involving liability under the law on defective performance (Leistungsstörungsrecht) where the debtor (the defendant) must prove that they are not liable for failure to comply with an obligation under Section 280(1), second sentence, of the Civil Code.

2. Relaxation of the burden of proof

a. Statutory presumptions (gesetzliche Vermutungen) relax the burden of proof on one of the parties, who has to plead and prove only the facts that justify the presumption (Section 292 of the Code of Civil Procedure (Zivilprozessordnung)). Statutory presumptions may relate to facts, an example being the presumption that a mortgage certificate has been transferred to the creditor by virtue of possession of the certificate (Section 1117(3) of the Civil Code). They may also relate to rights, an example being the presumption that the holder of a certificate of inheritance has the status of heir (Section 2365 of the Civil Code).

Statutory presumptions can, in principle, be rebutted in accordance with Section 292 of the Code of Civil Procedure unless the legislation indicates otherwise.

b. Factual presumptions (tatsächliche Vermutungen) are those on which prima facie evidence is based (Anscheinbeweis, evidence which is true ‘on the face of it’); the general approach is comparable to that involving statutory presumptions. There is prima facie evidence where a fact to be proved is a typical occurrence in the normal course of events, taking all the undisputed and established circumstances of the case into account. Prima facie evidence can be used in particular to establish causality and fault, e.g. fault where a vehicle is driven into a tree.

The opposing party can challenge the presumption on the basis of facts that cast serious doubt on whether the occurrence was indeed a typical occurrence in the ordinary course of events.

3. Case law is increasingly defining the burden of proof on the grounds of equity and a fair balancing of interests in specific areas of risk. The most significant examples are as follows:

  • Product liability (Section 823(1) of the Civil Code)

The burden of proving that a product is defective, that legal rights have been infringed and that there is a causal relationship between the two falls on the claimant, whereas the manufacturer has to prove the absence of fault.

  • Medical negligence

In these cases the burden of proof may be relaxed to the point where it is reversed as a result of inadequate or incorrect medical documentation (operation reports and patient files). In the case of gross medical error, all the claimant has to prove is that this is generally likely to cause the type of injury claimed. In establishing actual causality, therefore, the burden of proof on the claimant is relaxed to the point where it is shifted to the doctor.

  • Duties to inform and advise

If specific contractual obligations to inform and advise are not satisfied, the party at fault has the burden of proving that the damage would have occurred even if they had complied with their obligations. There is a presumption that the injured party would have acted in accordance with the information provided.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

Section 286 of the Code of Civil Procedure lays down the fundamental procedural principle of the free assessment of evidence (Freiheit der Beweiswürdigung). Under this principle, the court has to make its own decision about whether an alleged fact is true or false in the light of the entire content of the proceedings and the conclusions it draws from any evidence.

A preponderant or high degree of probability is not sufficient to prove a fact, but on the other hand all doubt does not have to be excluded. According to case‑law, there must be a degree of certainty which is sufficient in practice and which silences any remaining doubt, without necessarily ruling it out entirely.

There is an exception regarding the necessary degree of proof in cases where the law accepts that prima facie evidence suffices. An allegation is prima facie correct if there is a preponderant probability that it is correct. In proving prima facie correctness, the parties are not obliged to follow the strict rules of proof (witnesses, documents, inspection by the court, expert evidence or questioning of the parties). For example, a mere affidavit is also admissible (Section 294 of the Code of Civil Procedure).

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

The principle in civil proceedings is that the issues and the relevant evidence have to be put forward by the parties. The court may not itself introduce material as a basis for its decision. This may be qualified by the court's duty to inform and advise under Section 139 of the Code of Civil Procedure.

In some cases, the court may take evidence of its own motion, contrary to the principle of party presentation, but it must do so with a view to a well-founded presentation of the case by the parties, and may not seek to investigate the facts itself.

Hence the court may, of its own motion, order inspections and expert reports (Section 144 of the Code of Civil Procedure), the presentation of documents (Section 142) and further questioning of a party (Section 448). A party may also be questioned by the court of its own motion (Section 448) where the conclusions of the hearing or of any evidence taken are not sufficient to convince the court of the truth or falsehood of a fact to be proved. There must therefore be a certain degree of initial probability for the fact to be proved.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

The court directs the taking of evidence after a party has presented the issues on which it wishes to give evidence. This is generally done without specific formality at the hearing or by an order for evidence under Section 358 of the Code of Civil Procedure. According to Section 359 of the Code, this must specify the facts in dispute for which evidence is to be taken, must specify the evidence to be taken, giving the names of the witnesses and experts to be questioned or of the party to be questioned, and must specify the party that is relying on the evidence.

Evidence is then taken in accordance with the relevant legal provisions (Sections 355 to 484 of the Code of Civil Procedure). The principles that evidence should be taken directly (Section 355) and that the parties may attend (Section 357) have to be observed.

The first of these principles provides that the evidence must be given before the trial court, because it is this court that has to assess the evidence. An exception applies only where, in accordance with statute, responsibility for taking evidence can be transferred to one member of the trial court (Section 361 of the Code of Civil Procedure) or to another court (Section 362). Under the principle that parties may attend, the parties have a right to be present during the hearing of witnesses and also have the right to question witnesses (Section 397).

Under Section 285 of the Code of Civil Procedure, the results of the evidence are then debated in the oral proceedings. Under Section 286 of the Code, the court must establish the facts on the basis of the entire content of the proceedings, including the evidence taken; in doing so, it assesses the evidence freely.

2.3 In which cases can the court reject an application by a party to obtain evidence?

An application to admit evidence can be rejected on procedural grounds, or under the rules governing evidence, if:

  • the facts do not have to be proved by evidence, i.e. the facts have already been proved, or are obvious or undisputed;
  • the facts are not material, i.e. cannot have any influence on the decision;
  • the evidence is unsuitable for proving the fact alleged (this is rare, as evidence cannot be assessed before it is taken);
  • the evidence cannot be obtained;
  • the evidence is inadmissible, e.g. as a result of an unsubstantiated allegation in abuse of process or a conflicting confidentiality obligation of the witness (unless they are released from this obligation);
  • the taking of evidence is at the court's discretion, e.g. in the assessment of damages in accordance with Section 287 of the Code of Civil Procedure;
  • the fact was established finally in other proceedings and is binding on both parties;
  • the application was not submitted in time (Section 296(1) of the Code of Civil Procedure);
  • the taking of evidence is hampered by an obstacle of uncertain duration, the relevant time limit has elapsed and the proceedings would be delayed in other respects (Section 356 of the Code of Civil Procedure).

2.4 What different means of proof are there?

The five types of strict evidence are:

  • Judicial inspection, Sections 371-372a of the Code of Civil Procedure

This consists of any direct, sensory inspection by the judge for evidential purposes. Contrary to the somewhat misleading term used, ‘Augenschein’, ‘visual examination’, it may also include sensory inspection by touching, smelling, listening and tasting. Consequently, sound and video recordings and data storage media are also included.

  • Witness testimony, Sections 373-401 of the Code of Civil Procedure

Witnesses can testify to past events which they themselves have observed. This means that, unlike an expert, a witness cannot be replaced.

Only a person who is not a party to the dispute may be a witness.

If the witness must have specialised knowledge in order to understand the facts, the witness is referred to as an expert witness (sachverständiger Zeuge, Section 414 of the Code of Civil Procedure): an example would be the statement of an emergency doctor in the case of injuries sustained in an accident.

  • Expert, Sections 402-414 of the Code of Civil Procedure

The expert (Sachverständiger) provides the judge with the specialised knowledge the latter needs to assess the facts. Experts do not establish the facts themselves. They are expected to give their assessment purely on the basis of the facts referred to them (Anschlusstatsachen).

Only if specialist expert knowledge is required to establish the facts themselves can an expert be asked to give their own conclusions. An example would be a doctor's diagnosis.

A private expert report commissioned by one of the parties may be admitted as expert evidence only in exceptional cases and only with the consent of both parties.

  • Documentary evidence, Sections 415-444 of the Code of Civil Procedure

Documents within the meaning of of the Code of Civil Procedure are written declarations. The law draws a distinction between the evidential value of public documents (Sections 415, 417 and 418 of the Code) and of private documents (Section 416).

  • Questioning of the parties, Sections 445-455 of the Code of Civil Procedure

The questioning of parties is subsidiary to other forms of evidence and admissible only in order to present the main evidence (Section 445(2) of the Code of Civil Procedure). The parties may be questioned only with the consent of the other side or of the court.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

There are no differences in evidential value. Rather, all evidence has equal status, because of the principle that the court is free to assess the evidence. The only difference is the procedure for taking evidence.

Each witness must be examined individually and not in the presence of witnesses who are to be heard subsequently (Section 394(1) of the Code of Civil Procedure). Witnesses whose testimonies conflict may be brought face to face (Section 394(2)).

Before witnesses are questioned, they are warned that they must tell the truth and that they may subsequently be required to swear an oath (Section 395(1)). Witnesses are first asked to give their personal details (Section 395(2)) and are then questioned on the subject‑matter of the case (Section 396). The court tries to ensure that their testimony remains relevant to the matter on which they are being questioned. It may also put further questions to witnesses to clarify points or to ensure their testimonies are complete.

Parties have the right to be present when witnesses are questioned and to put questions to them. Generally, the parties themselves are only allowed to submit questions to be put to witnesses, whereas legal counsel can question a witness directly (Section 397).

These rules governing the questioning of witnesses also apply to evidence provided by expert witnesses and to the questioning of the parties themselves (Sections 402 and 451).

Documentary evidence is presented by submitting the document. If the party presenting the evidence does not have the document in question, but the document is in the possession of the opposing party or a third party, the party presenting the evidence may request that the opposing party or third party be required to produce the document (Sections 421 and 428). The obligation to produce documents is a requirement of civil law and applies where the person presenting the evidence is entitled to demand that the opposing party or a third party surrender or produce a document (Section 422). There must be prima facie grounds that the obligation applies (Section 424(5), second sentence). Written expert reports or opinions are documents within the meaning of of the Code of Civil Procedure.

2.6 Are certain methods of proof stronger than others?

In principle, no. Under the principle that the court is free to assess the evidence, in accordance with Section 286 of the Code of Civil Procedure, all evidence has equal status. All the evidence gathered provides a basis for the assessment to be made by the court. Only in exceptional cases do binding rules of evidence have to be observed by judges: examples are those applying to the evidential value of the record of the proceedings under Section 165 of the Code of Civil Procedure, or of the judgment under Section 314, or of other documents under Sections 415 to 418.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

No, the Code of Civil Procedure does not stipulate any obligatory forms of evidence to prove particular facts.

There are exceptions in certain types of proceedings. In proceedings relating to deeds and bills of exchange, evidence establishing the facts on which the claim is based may be given only in the form of documents, and evidence of all other facts only in the form of documents or by questioning the parties (Sections 592 et seq. of the Code).

2.8 Are witnesses obliged by law to testify?

All witnesses who are subject to the jurisdiction of the German courts and have been properly summoned are required to attend court hearings, to testify and to swear an oath.

A witness’s duty to testify also includes a duty to check what he or she knows on the basis of documents and to refresh his or her memory (Section 378 of the Code of Civil Procedure). Witnesses are not obliged to inquire into facts of which they are unaware.

2.9 In which cases can they refuse to give evidence?

The relevant rules in the Code of Civil Procedure provide for the right of witnesses to remain silent in view of their personal relationship with one of the parties (Section 383) and the right not to respond to particular questions on material grounds described below (Section 384).

The witness’s right to refuse to testify under Section 383 of the Code of Civil Procedure is based on a family relationship or obligation of professional trust, and is intended to avoid conflicts of interest.

It applies to betrothed persons (No 1), spouses (No 2) and parties in a civil union (No 3) for the duration of, and even after the end of, their marriage or civil union. Any person who is or was directly related to a party, either by blood or by marriage, or who is or was related as a collateral relative to the third degree, or who is or was a collateral relative by marriage to the second degree, cannot be obliged to testify either (No 3). Collateral relationship means not directly related, but descended from the same third person. The degree of blood relationship or of relationship by marriage is determined by the number of intermediary births.

Under Section 383 (1) No 4 of the Code, clerics, people who are or have been involved professionally in the preparation, production or distribution of periodicals or radio and TV programmes (No 5), and persons who, by virtue of their office, position or profession, are entrusted with information which cannot be disclosed because of its nature or by virtue of a legal provision (No 6), are not obliged to testify.

The right of witnesses to refuse to testify for professional reasons covers all information known to the persons referred to above by virtue of their particular position.

A witness’s right not to testify on material grounds (aus sachlichen Gründen) under Section 384 of the Code of Civil Procedure is intended to protect witnesses from adverse consequences of having to testify. It gives them the right not to reply to particular questions, but they cannot refuse to testify at all, as they can under Section 383.

The right not to testify under Section 384 applies where answering the question would cause direct financial damage to the witness or a person with a family relationship listed in Section 383 of the Code (No 1), or would expose them to dishonour or the risk of criminal or administrative prosecution (No 2). Nor do witnesses have to answer questions if this would oblige them to disclose a trade or business secret (No 3).

Section 385 of the Code of Civil Procedure sets out a number of exceptions to witnesses’ right not to testify under Sections 383 and 384. Of particular note is Section 385(2), which releases clerics and persons who are required not to testify under substantive law in accordance with Section 383(1) No 6 from their obligation to remain silent, and consequently restores their obligation to testify.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Yes. If a witness who has been properly summoned does not attend, the court will impose an administrative fine under Section 380(1) of the Code of Civil Procedure, and if this is not paid it will impose a custodial sentence. The fine is €5 to €1 000 (Section 6(1) of the Act introducing the Criminal Code (Einführungsgesetz zum Strafgesetzbuch)), and the custodial sentence is one day to six weeks (Section 6(2) of the same Act). Witnesses are also required to pay the costs occasioned by their failure to attend.

A witness who fails to attend for a second time can be forcibly brought to the hearing under Section 380(2) of the Code of Civil Procedure, as well as incurring an administrative penalty. These measures will not be enforced if the witness provides an adequate explanation of his or her absence in good time. If no such explanation is received in good time, the witness will have to show that he or she was not responsible for the delay (Section 381 of the Code).

If a witness refuses to testify or to swear an oath without giving a reason, or gives a reason that has been finally declared to be irrelevant, the same measures can be taken under Section 390(1) of the Code of Civil Procedure as those applying to a witness who fails to attend without explanation. If a witness refuses to testify a second time, he or she may, on application, be detained in order to compel him or her to testify, but only for the duration of the current trial (Section 390(2) of the Code).

2.11 Are there persons from whom evidence cannot be obtained?

No, there is no general disqualification from being a witness. Any person who has the maturity to make factual observations and to understand and answer questions about them can be a witness, irrespective of their age or ability to enter into legal transactions.

There are no special rules for people who have previously been punished for deliberately making false statements or committing perjury.

A person cannot be a witness if they are directly involved in the proceedings, as a party or as the legal representative of a party. There is an exception for joint parties in relation to facts which solely concern other joint parties. In certain circumstances, an agent may be a witness if the subject-matter of the examination is outside the scope of the agency relationship. A registered representative may, for example, testify in relation to facts that are not related to their duties in proceedings to which the person they represent is a party.

The relevant time at which a person must qualify to appear as a witness is always the time at which they are to be heard.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Witnesses are questioned by the judge or judges. The examination of witnesses may also be allocated to one member of the trial court. Section 375(1a) of the Code of Civil Procedure often applies here.

Each witness must be examined individually, and not in the presence of witnesses who are to be heard subsequently (Section 394(1) of the Code of Civil Procedure). Witnesses whose testimonies conflict may be brought face to face (Section 394(2)).

Parties have the right to be present when witnesses are questioned and to put questions to them. Generally, the parties themselves are allowed only to submit questions to be put to witnesses, whereas legal counsel can question a witness directly (Section 397).

Witnesses may be heard via videoconferencing if, on application, the parties concerned give their consent (Section 128a(2)). The consent of the witness or expert is also required, as the transmission affects their personal rights.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

First, there may be legislation that prohibits the court from considering particular evidence: for example, a court may not consider judgments which have been removed or or which are to be removed from the Federal Central Register (Section 51 of the Act governing the Federal Central Register (Bundeszentralregistergesetz)).

Second, the court may be prohibited from considering evidence under the case‑law of the Federal Constitutional Court (Bundesverfassungsgericht) in cases where taking evidence would violate a constitutional right of the individual and, on a balance of interests, no exceptional justification exists.

Under this case‑law, for example, the court may not generally hear evidence obtained by means of secret sound recordings. The same applies to the use of mini-transmitters, directional microphones or intercoms to listen in to conversations, and to the use in evidence of illegally obtained personal records, such as diaries or intimate letters.

However, in all these cases, it may be decided on a case-by-case basis that by way of exception there are counterbalancing rights that justify the admission of illegally obtained evidence, always provided that this does not impinge on the core area of private life.

The question whether evidence must be excluded as a result of a procedural rule must be decided separately for each such rule. Deficiencies affecting the proceedings and, in particular, the way the hearing is conducted can be remedied under Section 295(1) of the Code of Civil Procedure. The examination of a particular party as a witness is, for example, a procedural deficiency that can be waived, i.e. the evidence can be used if the parties waive the rule or have not raised an objection against the error by the end of the subsequent hearing. Failure to provide information about a witness’s right to refuse to give evidence may also be remedied under Section 295(1) of the Code.

Compliance with rules in the public interest cannot, however, be waived (Section 295(2)). Examples include all points to be considered by the court of its own motion, such as the requirements for the proceedings, the admissibility of an appeal, and the disqualification of people to be judges.

3.2 As a party to the case, will my own statement count as evidence?

As has already been explained at 2.4, the examination of parties may under certain circumstances be admitted as evidence. The weight given to such evidence is left to the court's discretion (Section 286 of the Code of Civil Procedure).


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 15/03/2018

Taking of evidence - Estonia

Please note that the original language version of this page Estonian has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The burden of proof is governed by Section 230 of the Code of Civil Procedure (tsiviilkohtumenetluse seadustik), which states that, in actions, each party is to prove the facts on which their claims and objections are based, unless otherwise provided for by law. Furthermore, unless otherwise prescribed by law, the parties may agree on a division of the burden of proof different from that provided for by law, and agree on the nature of evidence for proving certain facts. Unless otherwise provided for by law, the court may take evidence at its own initiative in a matrimonial matter, filiation matter, a dispute related to the interests of a child or proceedings on petition.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

A fact that the court deems to be common knowledge need not be proved. A fact concerning which reliable information is available from sources outside the proceedings may be declared as common knowledge by the court. Furthermore, an argument made by a party concerning a fact need not be proven if the opposing party admits the fact. Admission means unconditional and express agreement to a factual allegation by means of a written statement addressed to the court, or made in a court session where the agreement is recorded in the minutes. Admission may be withdrawn only with the consent of the opposing party or if the party withdrawing the admission proves that the allegation concerning the existence or absence of the fact is incorrect, and that admission was caused by an incorrect understanding of the fact. In such cases the fact is not deemed to be admitted.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The court evaluates all evidence pursuant to law from all perspectives, thoroughly and objectively, and decides, according to the conscience of the court, whether or not an argument presented by a participant in a proceeding is proven considering, amongst other factors, any agreements between the parties concerning the provision of evidence.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

Although Section 236(2) of the Code of Civil Procedure states that, in general, the concerned parties should request the court to take the evidence, Section 230(3) of the Code of Civil Procedure provides for cases where the court may take evidence on its own initiative. In particular, unless otherwise provided for by law, the court may take evidence on its own initiative in matrimonial matters, filiation matters, disputes related to the interests of a child or proceedings on petition.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

If the taking of additional evidence is required in order to evaluate evidence, the court will organise this by means of a court ruling which is communicated to the participants in the proceedings. If evidence has to be taken from outside the territorial jurisdiction of the court conducting proceedings in a matter, the court hearing the matter may send a letter of request in order to make a ruling for performance of a procedural act by the court within whose territorial jurisdiction the evidence may be taken. In addition, evidence may be taken outside Estonia.

After making a ruling, evidence is to be taken in line with the provisions governing the taking of evidence, depending on the type of evidence, in Chapters 27–32 of the Code of Civil Procedure.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court may reject a request for the taking of evidence if:

  1. the evidence has no relevance to the matter (above all, if the fact proven need not be proved or if the court deems that enough evidence has already been provided in proof of the fact);
  2. pursuant to law or based on an agreement between the parties, a fact must be proven by evidence of a certain type or form, but the taking of evidence of another type or form is requested;
  3. the evidence is not accessible, above all if the witness’s details or the location of a document is unknown, or if the relevance of the evidence is disproportionate to the time needed to take the evidence or any other related difficulties;
  4. the request for the taking of the evidence is made late;
  5. the need for taking evidence is not substantiated;
  6. the participant in the proceedings requesting the taking of evidence fails to make an advance payment demanded by the court in order to cover the costs incurred when taking the evidence.

2.4 What different means of proof are there?

According to Section 229(1) of the Code of Civil Procedure, evidence in a civil matter is any information which is in a procedural form provided by law and on the basis of which the court, pursuant to the procedure provided by law, ascertains the existence or lack of facts on which the claims and objections of the parties are based and other facts relevant to the just adjudication of the matter.

Under subsection 2, evidence may be the testimony of a witness, statements given under oath by the participants in the proceedings, documentary evidence, physical evidence, an inspection or an expert opinion. In proceedings on petition the court may also deem other means of proof, including a statement of a participant in the proceedings that is not given under oath, to be sufficient to prove the facts.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

1) Witness testimony

According to Section 251(1) of the Code of Civil Procedure, any person who may be aware of the facts relevant to a matter may be heard as a witness unless the person is a participant in the proceedings or a representative of a participant in the proceedings in the matter. Witnesses are to provide information regarding the facts they have directly perceived. A person summoned as a witness is required to appear in court and give truthful testimony before the court with regard to the facts known to them. Instead of witnesses attending a hearing, they may be required to provide written statements, if appearing before the court would be an unreasonable burden on the witness and, taking account of the contents of the questions and the personal characteristics of the witness, giving written testimony is, in the court’s opinion, sufficient for providing proof. Alternatively, the court may use the record of a hearing in another court proceedings, if this clearly simplifies the proceedings and the court may be presumed able to assess the record to the necessary extent without directly questioning the witness.

Every witness is heard individually and witnesses who have not been heard are not permitted to be present in the courtroom during the hearing of the matter. If a court has reason to believe that a witness is afraid or has some other reason not to speak the truth before the court in the presence of a participant in the proceedings or if a participant in a proceedings leads the testimony of a witness by interference or in any other manner, the court may remove that person from the courtroom while the witness is heard. In such cases, after the return of that person the testimony of the witness is read to the participant in the proceedings and the participant in the proceedings has the right to question the witness. If the testimony of the witnesses is contradictory, the court may hear and question a witness several times in the same court session.

In the event of written statements, participants in the proceedings have the right to submit written questions to witnesses through the court. The court determines which questions the witness is required to answer. If necessary, the court may summon a witness to a court session in order to give oral testimony.

If a person is unable to appear in court due to illness, old age or disability or for any other valid reason, or if it is necessary for another reason, the court may go to the witness to hear their testimony.

The court examines evidence directly (Section 243(1) of the Code of Civil Procedure). In order to verify the reliability of witness statements, the court may rely on the various methods specified in Sections 262(1) and (8) of the Code of Civil Procedure, e.g. under subsection 1 the court ascertains the identity of a witness and his or her area of activity, education, place of residence, connection to the matter and relationships with the participants in the proceedings. Before giving testimony, the court explains the obligation of a witness to tell the truth and the procedure for refusing to give testimony; under subsection 8, the court shall, if necessary, pose additional questions during the entire questioning in order to clarify or supplement the testimony, or to establish the basis for the witness's knowledge.

2) Expert opinion

In order to clarify circumstances relevant to a matter which require specific expertise, the court has the right to obtain the opinion of experts at the request of a participant in the proceedings. In order to ascertain the law in force outside the Republic of Estonia, international law or common law, the court may ask the opinion of an expert in legal matters at the request of a participant in the proceedings or on the initiative of the court. The provisions concerning the hearing of witnesses apply to hearing persons with specific expertise with the aim of proving a circumstance or event that requires specific expertise in order to be correctly interpreted. If a participant in the proceedings has submitted the written opinion of a person with specific expertise to the court and the person is not heard as a witness, these opinions are considered as documentary evidence. Instead of ordering an expert assessment, the court may use an expert opinion submitted at the order of the court in another court proceedings or an expert opinion prepared at the order of the body conducting proceedings in criminal or misdemeanour proceedings if this simplifies the proceedings and if the court is presumed to be able to evaluate the expert opinion to the necessary extent without organising a new expert assessment. In such cases, the expert may be posed additional questions or summoned to court for questioning.

An expert assessment is conducted by a forensic expert or other qualified person employed by a state forensic institution, by an officially certified expert or by another person with specific expertise appointed by the court. The court may appoint a person as an expert if the person has the knowledge and experience necessary to provide an opinion. If an officially certified expert is available for conducting an expert assessment, other persons are appointed as experts only with good reason. If the parties agree on an expert, the court may appoint that person as an expert if they are able to act in the capacity of an expert pursuant to law.

A participant in the proceedings has the right to pose questions to an expert through the court. The court determines which questions require an expert opinion. The court must set out its reasons for rejecting any such questions. Experts are to submit their expert opinion to the court in writing, unless the court orders them to provide this orally or, with the expert's consent, in another form. An expert opinion should contain a detailed description of any examinations carried out, the conclusions reached as a result of those examinations and reasoned answers to the court’s questions.

Experts are to provide a correct and reasoned opinion on the questions posed to them. In order to provide an expert opinion, an expert may examine any material from the case which is necessary, participate in the examination of evidence in court and request reference materials and additional information from the court.

An expert opinion is disclosed during a court session. Unless the expert opinion is submitted in writing or in a format that can be reproduced in writing, the expert provides their opinion in a court session. The court may summon an expert who has submitted an expert opinion in writing or in a format which can be reproduced in writing to a court session for questioning. The court may also summon an expert who has provided an expert opinion to a court session if this is requested by one of the concerned parties.

After examining an expert opinion, the participants in the proceedings may pose questions to the expert in a court session in order to clarify the opinion, provided that the expert has been summoned to court. The questions may also be submitted to the court beforehand and then forwarded to the expert by the court. The court will exclude any questions that are irrelevant or beyond the competence of the expert.

The provisions concerning the hearing of witnesses also apply to the hearing of experts.

3) Written evidence

Documentary evidence takes the form of a written document or any other document or similar data medium that is recorded by way of photography, video, audio, electronic or other data recording, contains information on the facts relevant to the adjudication of a matter and can be submitted in a court session in a perceptible form.

Official and personal correspondence, decisions from other cases and the opinions of any persons with specific expertise submitted to the court by participants in the proceedings are also deemed to be documents.

Any written documents submitted should be originals or transcripts. If participants in the proceedings submit original documents together with a transcript, the court may return the original documents and include in the file a copy of the transcript certified by the judge. At the request of persons submitting written documents, the original documents included in the file may be returned after the court decision has come into force and the proceedings have been concluded. The transcript is kept in the file. The court may set a deadline for the examination of a submitted document, after which the court is to return the document. In such cases, the transcript of the document is to be kept in the file. If a document has been submitted in the form of a transcript, the court has the right to request that the original document be submitted or the circumstances preventing the original document from being submitted be substantiated. If the demands of the court are not complied with, the court is to decide on the probative value of the transcript of the document.

2.6 Are certain methods of proof stronger than others?

In civil procedures, the general rule of the free assessment of evidence applies, but limitations may be applied with the agreement of the concerned parties. In particular, Section 232(2) of the Code of Civil Procedure states that no evidence has predetermined weight for a court, unless otherwise agreed by the parties. Thus, the parties may agree to assign a decisive weight to certain pieces of evidence.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Yes. It may arise from law or an agreement between the parties that a certain fact may be proven only with evidence of certain type or in a certain form.

2.8 Are witnesses obliged by law to testify?

Yes. Under Section 254 of the Code of Civil Procedure, a person summoned as a witness is required to appear in court and give truthful testimony before the court with regard to the facts known to him or her.

2.9 In which cases can they refuse to give evidence?

The following persons have the right to refuse to give testimony as witnesses:

  1. the descendants and ascendants of the plaintiff or defendant;
  2. a sister, stepsister, brother or stepbrother of the plaintiff or defendant, or a person who is or has been married to a sister, stepsister, brother or stepbrother of the plaintiff or defendant;
  3. a step parent or foster parent or a step child or foster child of the plaintiff or defendant;
  4. an adoptive parent or an adopted child of the plaintiff or defendant;
  5. the spouse or cohabitant of the plaintiff or defendant, and the parents of the spouse or cohabitant, even if the marriage or cohabitation has ended.

A witness may also refuse to give testimony if the testimony may incriminate them or a person specified above in a criminal offence or misdemeanour.

A witness has the right to refuse to give testimony concerning any facts to which the State Secrets and Classified Information of Foreign States Act (riigisaladuse ja salastatud välisteabe seadus) applies.

Any person processing information for journalistic purposes has the right to refuse to give testimony concerning any facts that would make it possible to identify the person who provided the information.

Regardless of the above, a witness is not permitted to refuse to give testimony concerning:

  1. the performance and content of a transaction which he or she was invited to witness;
  2. the birth or death of a family member;
  3. a fact related to a proprietary relationship arising from a relationship under family law;
  4. an act related to a disputed legal relationship which the witness performed themselves as the legal predecessor or representative of a party.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Yes. If a witness refuses to give testimony without good reason, the court may impose a fine or detain the witness for up to 14 days. The witness is to be released immediately if they give the testimony or if the hearing of the matter ends or the need for the witness to be heard ceases to exist.

In addition, a witness bears the procedural expenses caused by his or her refusal to give testimony without good reason.

2.11 Are there persons from whom evidence cannot be obtained?

Section 256 of the Code of Civil Procedure sets out which persons are not permitted to be heard as witnesses. In particular, ministers of a religious association registered in Estonia or their support staff shall not be heard or questioned with regard to circumstances confided to them in the context of spiritual care. The following are not to be heard as witnesses without the permission of the person in whose interests the duty to maintain confidentiality is imposed:

  1. representatives in civil or administrative matters, counsels in criminal or misdemeanour matters and notaries with regard to facts which have become known to them in the performance of their professional duties;
  2. doctors, pharmacists or other health care providers, with regard to facts which a patient has confided in them, including facts related to the ancestry, artificial insemination, family or health of a person;
  3. other persons who, due to their occupation or professional or economic activities, have been party to confidential information which they are not permitted to disclose pursuant to law.

Professional support staff of the persons referred to above may also not be heard as witnesses without the permission of the person in whose interests the duty to maintain confidentiality is imposed.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Section 262 of the Code of Civil Procedure sets out the procedure for the hearing of witnesses. The hearing of a witness is to start with the court explaining the object of the hearing to the witness and urging the witness to disclose everything that they know concerning the object of the hearing. Thereafter, the participants in the proceedings have the right to submit questions to the witness through the court. With the permission of the court, participants in the proceedings may also pose questions directly.

The court excludes any leading questions and questions that are not relevant to the matter, as well as any questions posed with the aim of revealing new facts that have not been presented before and repeated questions. If necessary, the court has the right to pose additional questions at any point during questioning in order to clarify or supplement the testimony, or to establish the basis for the witness's knowledge.

Under Section 350 of the Code of Civil Procedure, the court may organise a session in the form of a procedural conference so that the participants in the proceedings or their representative or adviser have the opportunity to be in another place at the time of the court session and perform the procedural acts in real time at that place. A witness or expert who is in another place may also be heard, and a participant in the proceedings who is in another place may pose questions to them via a court session held in the form of a procedural conference.

In a court session organised in the form of a procedural conference, the right of every participant in the proceedings to file petitions and applications and to formulate positions on the petitions and applications of other participants in the proceedings is to be guaranteed in a technically secure manner, and the conditions of the court session in respect of the real time transmission of images and sound from the participants in the proceedings not present in court premises to the court and vice versa must be technically secure. With the consent of the parties and the witness and, in proceedings on petition, with the consent of the witness alone, the witness may be heard by telephone in a procedural conference. The Minister of Justice may establish specific technical requirements for conducting a court session in the form of a procedural conference.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Under Section 238(3)(1) of the Code of Civil Procedure the court may refuse to accept evidence and return the evidence if the evidence has been obtained by a criminal offence or unlawful violation of a fundamental right.

3.2 As a party to the case, will my own statement count as evidence?

According to Section 267 of the Code of Civil Procedure, a party who has not been able to prove, by any other evidence, a fact which needs to be proven by him or her or who has not provided any other evidence, has the right to request that the opposing party or a third party be heard under oath in order to prove the fact. In the case of a legal person, a representative thereof may be heard under oath.

The court may also hear, under oath, a party required to provide evidence concerning a disputed fact if one party requests it and the other party agrees.

Regardless of the parties’ requests and the division of the burden of proof, the court may on its own initiative hear under oath either or both parties if, on the basis of the earlier proceedings and the evidence provided and taken, the court is not able to form a position on the truth of a stated fact that is to be proven. The court may also hear a party under oath on its own initiative if the party required to provide evidence wishes to give statements under oath, without the consent of the opposing party.

In simplified proceedings and in proceedings on petition, the court may also deem a statement from a participant in the proceedings that has not been given under oath to be sufficient in order to prove a fact, unless it arises from the regulation of the relevant type of proceedings on petition that only statements given under oath by participants in the proceedings are admissible. In an action, a decision may not be based on any statement given by a party which was not given under oath.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 10/07/2017

Taking of evidence - Ireland

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The burden of proving that a particular claim generally rests on the party who makes the assertion or claim in question. For example, in a negligence action, the onus of proving negligence rests on the plaintiff and the burden of proving contributory negligence rests on the defendant. Generally, proof of the facts necessary to establish a cause of action will rest on the plaintiff whilst proof of a defence to the action will lie on the defendant and if the defendant makes a counterclaim, then the defendant will bear the burden of proof in respect of that claim. However, certain statutory requirement sometimes put the onus of proof on a defendant. For example, in unfair dismissal claims, the burden of proof falls on the defendant employer i.e. the employer must show that there were substantial grounds justifying the dismissal. [See the Link opens in new windowUnfair Dismissals Act 1977 as amended].

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

It is not necessary to prove facts which are admitted. Judges may rely on their general knowledge or take judicial notice of facts which are clearly established or well known or part of common knowledge, and therefore evidence of such facts is unnecessary. The law makes certain presumptions which may be rebutted by evidence. These include presumptions as to the legitimacy of children, the validity of marriages, the mental capacity of adults and the presumption of death where a person has not been seen or heard from in over 7 years despite all appropriate enquiries having been made. The rule of res ipsa loquitur applies where a presumption of negligence is made in circumstances where the cause of the accident is shown to have been under the control of the defendant or his servants or agents at the time of the accident and the accident was such that in the ordinary course of events would not have happened if those in control had used proper care. When the maxim of res ipsa loquitur is invoked, it shifts or moves the burden of proof onto the defendant and he or she must then show that he or she was not negligent. However, the burden of proving causation still rests with the plaintiff. Of note is the fact that the doctrine res ipsa loquitur does not have to be pleaded or set out in the plaintiff’s claim in order for a plaintiff to be able to rely on it at the hearing of the case if the facts show that the doctrine is clearly applicable.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

In a civil case, a party will succeed on an issue if he or she satisfies the court in relation to that issue on the balance of probabilities. Thus, if a party fails to satisfy the court that his or her version of events is more probable than his or her opponent’s version, then he or she will lose the case. It is a flexible standard and the courts will generally require more proof in certain cases, such as cases involving a claim of fraud, because of the seriousness of the allegation.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

Evidence is obtained in civil proceedings through discovery of documents, disclosure and through the testimony of witnesses.

Discovery: In High Court actions, discovery is obtained by application by one party to the other in writing requesting that discovery be made voluntarily. The court will only order discovery where the other party has failed or refused to make the discovery voluntarily or has ignored the request for discovery. [See Link opens in new windowRules of the Superior Courts, Ord. 31, r. 12 as amended]. Any discovery sought must be relevant and necessary to the facts in issue in the action. It is also possible to seek discovery of documents from a non-party to the action.

Disclosure: Any party to a personal injuries action must disclose to the other party, without the necessity for any court application, any medical reports prepared by experts who will be called as witnesses to give evidence at the trial. [See Link opens in new windowRules of the Superior Courts, Ord. 39, r. 46 as amended]. Both parties must also exchange lists of the names and addresses of all witnesses intended to be called and the plaintiff must furnish a full statement of all items of special damages or out of pocket expenses associated with the loss or injury the subject matter of the claim.

Witnesses of Fact: Parties do not need the permission of the court to adduce witness evidence in support of their cases, with the exception of proceedings in the Commercial List of the High Court, where a party who wishes to rely on the evidence of a witness must serve a witness statement signed by the witness setting out the witness’s evidence and must call the witness to give oral evidence at the trial. If a party fails to provide a witness statement before the trial in the High Court Commercial List, that party may not call the witness without the permission of the court. The court also has wide powers to control the evidence which is admitted and may exclude evidence which would otherwise be admissible or limit the cross-examination of a witness. In certain circumstances, a party may also apply for a court order to allow a witness’s evidence to be given in a sworn deposition taken by a court-appointed examiner prior to the hearing of the action. In general, the judge’s function is to hear all of the evidence adduced by the parties and not to engage in a fact-finding mission. Generally, a judge has no right to call a witness without the consent of the parties, although he or she may do so in cases of civil contempt or in certain child care proceedings. A judge also has the power to recall a witness previously called by a party.

Expert Witnesses: Parties do not generally need the permission of the court to adduce expert evidence in support of their cases. Where expert evidence is to be adduced the parties should exchange any expert reports in advance of the trial. In proceedings in the Commercial List of the High Court, a judge may, as part of the pre-trial procedure, direct any expert witnesses to consult with each other for the purposes of identifying the issues in respect of which they intend to give evidence, reaching agreement on the evidence that they intend to give in respect of those issues and considering any matter which the judge may direct them to consider. Such expert witnesses may be directed by the court to prepare a memorandum to be jointly submitted by them to the Registrar and delivered by them to the parties, which will contain the outcome of their meetings and consultations. Any such outcome of expert witness consultations shall not be binding on the parties. [See Link opens in new windowRules of the Superior Courts, Ord. 63A, r. 6(1)(ix)].

The court may, of its own motion, appoint an expert as an assessor to assist the court in relation to the issue to be tried. The court may direct the assessor to prepare a report, copies of which are provided to the parties, and to attend the trial to advise or assist the court.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Discovery: An order for discovery will only be made by a court where the party from whom discovery is sought has failed, refused or neglected to make the discovery sought on a voluntary basis. Therefore, if the court orders discovery, the party who sought the discovery will usually be awarded the costs of having made the application. If a party to an action is ordered to make discovery of certain documents in their power or possession, they must make copies of those documents available to the other side. An order for discovery is complied with by the swearing of an affidavit of discovery setting out the relevant documents by way of exhibits to the affidavit. Failure to comply with an order for discovery may lead to the action being dismissed or the defence being struck out so as to ensure that parties to litigation comply with orders for discovery.

Witnesses of fact: Parties do not need the permission of the court to adduce witness evidence in support of their cases. In circumstances where the court orders that a witness’s evidence is to be taken in a deposition, the witness will give evidence orally before a court-appointed examiner. The examination will be conducted as if it were a trial, with a full opportunity to cross-examine the witness and with a transcript of the evidence being produced.

Expert Witnesses: Parties do not generally need the permission of the court to adduce expert evidence in support of their cases. Experts may prepare written reports where they set out their findings and give their impartial, expert opinion. Where expert reports are prepared they should be exchanged in advance of the trial. The expert’s overriding duty is to the court and not to either of the parties to the proceedings, although the expert will be paid by the party instructing him or her.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court may reject an application of a party seeking to obtain or adduce certain evidence if the court is of the view that that evidence is irrelevant, unnecessary or inadmissible. According to the “best evidence rule”, the best and most direct evidence of a fact must be adduced or if the best evidence is not available, its absence must be accounted for. For example, the best evidence as to the contents of a particular letter is the production of the letter itself, rather than the giving of oral evidence as to its contents. In general, all evidence relevant to any of the facts in issue is admissible. However, certain evidence is inadmissible such as privileged communication (for example evidence of confidential communication between a client and solicitor). Therefore, the admissibility of evidence will be decided in each case by the judge.

2.4 What different means of proof are there?

Facts may be proved by evidence, by presumptions and inferences which arise from evidence, and by the court taking judicial notice of certain known facts. The types of evidence which may be relied upon in civil proceedings are witness testimony, documents and real evidence. Documents can include paper documents, computer records, photographs, and video and sound recordings.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

In principle, witnesses of fact give their evidence orally at trial where they are asked to confirm the truth and accuracy of their statements.

Expert witnesses give their evidence in written reports unless the court orders otherwise. An expert report must set out its conclusions, the facts and assumptions upon which it is based, and the substance of the expert’s instructions. The court will decide whether it is also necessary for an expert to attend trial to give oral evidence.

2.6 Are certain methods of proof stronger than others?

The court has a wide discretion as to the weight or credibility which should be attached to any piece of evidence. For example, hearsay evidence, while it may be admissible in civil proceedings, will often carry less weight than direct testimony, particularly if the maker of the statement could have been called himself or herself to give evidence.

Certain documents and records are accepted as authentic. For example, the records of businesses and public authorities are accepted as authentic if certified as such by an officer of the business or public authority and various types of official documents (such as legislation, by-laws, orders, treaties and court records) may be proved by printed or certified copies without any further proof.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Certain transactions must be effected in writing and documentary evidence is therefore required for proof of such transactions. Examples include contracts for the sale of land.

2.8 Are witnesses obliged by law to testify?

As a general rule, if a witness is competent he or she can be compelled to attend court and give evidence. A party who wishes to secure the attendance of a witness at trial prepares a witness summons requiring the witness to attend the court to give evidence. Once issued by the court and properly served, the summons binds the witness to attend the hearing. A person who disobeys a witness summons is guilty of contempt of court.

2.9 In which cases can they refuse to give evidence?

The general rule that competent witnesses may be compelled to testify does not apply to foreign sovereigns and their households, foreign diplomatic agents and consular officials, representatives of certain international organisations and judges and jurors, in relation to their activities in those capacities. Spouses and relatives of the parties may be compelled to give evidence in civil proceedings. A witness is obliged to answer a question except in circumstances where they would lose the privilege against self-incrimination. In other words, a witness is obliged to answer a question unless he or she can establish that there are reasonable grounds to fear that the answer will tend to incriminate him or her.

Witnesses who may generally be required to give evidence are nevertheless entitled to withhold certain documents from inspection and refuse to answer certain questions on the grounds of privilege. The main types of privilege are legal professional privilege, “without prejudice” communication, and, as mentioned above, the privilege against self-incrimination.

Evidence may also be withheld on the grounds of public interest immunity if its production would be contrary to the public interest. The evidence which may be covered by the immunity includes evidence relating to national security, diplomatic relations, the workings of central government, the welfare of children, the investigation of crime and protection of informants. In addition, journalists are not required to disclose their sources unless disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A witness who refuses to testify, having been served with a witness summons, may be committed to prison for contempt of court until such time as she or he purges his or her contempt, or may be required to pay a fine. A failure to comply with a witness summons is in effect a failure to comply with a court order and so any refusal to testify may be a contempt of court.

2.11 Are there persons from whom evidence cannot be obtained?

Adults are not competent to give evidence in civil proceedings if they are incapable of understanding the oath or incapable of giving rational testimony. A child witness may not be competent to give evidence if he or she does not understand the duty to speak the truth or have sufficient understanding to justify his or her evidence being heard and it is up to the particular trial judge to decide this issue.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Witnesses initially give their evidence-in-chief and are then cross-examined by the opposing barrister. During cross-examination, leading questions may be put to the witness. Sometimes, the witness is again re-examined by the side that called them initially after cross-examination has ceased. The judge may also ask question of the witness, for example to receive clarification on certain matters.

Provision has been made to allow witnesses to give evidence by live television link in certain cases. In proceedings concerning the welfare of a child or a person with a mental disability, the court may hear evidence from a child though a live television link and questions to the child may be put through an intermediary. Live television link evidence may also be received where the witness in question lives outside the jurisdiction of Ireland.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Illegally obtained evidence is not necessarily inadmissible. It is admissible if it is relevant but the trial judge has discretion to exclude it. If it appears to the trial judge that public policy requires the evidence to be excluded, then even if it is relevant to the facts in issue, the evidence will not be admitted.

3.2 As a party to the case, will my own statement count as evidence?

Witness statements given by the parties to the proceedings are admissible in evidence to the same extent as statements given by non-parties.

Related links

Link opens in new windowhttp://www.courts.ie/


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 09/03/2015

Taking of evidence - Italy

Please note that the original language version of this page Italian has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The burden of proof is governed by the principles set out in Section 2697 of the Civil Code, which states that: ‘Those intending to enforce a right before a court shall provide evidence of the facts supporting the claim. A party challenging the validity of those facts, or claiming that the right has changed or is exhausted, shall provide evidence of the facts supporting such objection.’

These principles therefore require the applicant to prove the facts on which his or her claim is based, i.e. the facts that have the legal effects claimed. The defendant, on the other hand, must provide evidence of facts precluding liability, or showing that a right has been exhausted or changed in such a way that the applicant’s claim should be dismissed.

If the applicant is unable to substantiate his or her claim, the application is dismissed, irrespective of whether the defendant submits argument and supporting evidence in defence.

Section 2698 of the Civil Code renders null and void any agreement intended to transfer or alter the burden of proof in respect of an inalienable right or which makes it overly difficult for either of the parties to exercise their rights.

Insufficient evidence harms the case of the party – be it the applicant or the defendant – who has to prove or disprove the facts, as insufficient evidence is considered to be equivalent to no evidence.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

The burden of proof does not apply in the following cases:

  • In the case of presumptions, i.e., where the law itself determines the evidential value of certain facts, or allows the court to draw conclusions about an unknown fact from a known fact (Section 2727 of the Civil Code).

    Presumptions are divided into:
  • legal presumptions, those established by law, which may be rebuttable (iuris tantum), meaning that they may be overthrown if evidence is produced to the contrary, or irrebuttable (iuris et de iure), meaning that they cannot be overthrown by seeking to produce contrary evidence in court;
  • simple presumptions, which the court must assess in its discretion, accepting only serious, precise and consistent presumptions; simple presumptions are not admitted in relation to facts in respect of which the law does not allow witness evidence (Section 2729 of the Civil Code);
  • well‑known facts (fatti notori), i.e. facts which are generally known at the time and place of the ruling, so that they are not open to doubt (Section 115 of the Code of Civil Procedure);
  • uncontested or admitted facts, i.e. facts put forward by both parties or admitted – even tacitly – by the party that might have an interest in challenging them (Section 115(1) of the Code of Civil Procedure).

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The court’s decision to uphold a claim or any objections against it must be based purely on facts that are fully proven, either directly or by way of presumption.

The court’s judgment may not be based on unproven facts, even where they are possible or highly likely (Section 115(I) of the Code of Civil Procedure).

2 The taking of evidence

2.1 Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his/her own initiative?

Under the Italian legal system the taking of evidence is governed by the principle that the scope of the proceedings is determined by the parties (principio dispositivo), laid down in Section 115(1) of the Code of Civil Procedure: the court must base its judgment on the evidence submitted by the parties, ‘apart from those cases specified by law’.

However, certain exceptions to this rule are set out in the following sections of the Code of Civil Procedure:

  • Section 117: allows the informal questioning of the parties;
  • Section 118: allows inspections of persons and objects to be ordered;
  • Sections 61 and 191: allow the court to request expert opinions;
  • Section 257: allows the court to summon a witness who has been mentioned by another witness;
  • Section 281 ter: allows a general court (tribunale) sitting with a single judge to order the taking of witness evidence if the parties’ account of the facts mentions individuals who would appear to be acquainted with the facts.

In labour disputes, the principle that the scope of the proceedings is determined by the parties is replaced by a system marked by inquisitorial elements, specifically under the following provisions:

  • Section 420: provides for the free questioning of the parties during the hearing on the case;
  • Section 421: provides that the court may at any time on its own initiative order the admission of any type of evidence, even beyond the limits set by the Civil Code.

In divorce proceedings, the court may order the taking of evidence on its own initiative, but only as concerns investigation into income and living standards.

2.2 If the application of a party concerning the taking of evidence is approved, what steps follow?

If one party applies for the taking of evidence, the opposing party can apply for the taking of contrary evidence. The court will grant both applications if it has reason to believe that the facts submitted will be relevant for the purposes of arriving at its judgment.

If the court admits the evidence, it will then proceed to hear it.

After the evidence has been taken, the case will be adjudicated.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court will reject an application for the taking of evidence where the evidence would be valueless or inadmissible under the law (for example, if a claim that a piece of real estate was sold is based only on witness statements), or where the facts to which the application refers would be irrelevant for the purposes of the judgment (for example, testimony concerning a fact unrelated to the subject‑matter of the dispute).

2.4 What different means of proof are there?

Italian law distinguishes between documentary and non‑documentary evidence.

Documentary evidence includes:

  • public documents (Sections 2699 et seq. of the Code of Civil Procedure);
  • private documents (Sections 2702 et seq.);
  • telegrams (Sections 2705 et seq.);
  • domestic files and records (Section 2707);
  • accounting records of businesses (Section 2709);
  • mechanically produced copies (Section 2712);
  • copies of documents and contracts (Sections 2714 et seq.).

Non-documentary evidence includes:

  • witness evidence (Sections 2721 et seq. of the Code of Civil Procedure);
  • confessions (Sections 2730 et seq.);
  • sworn statements (Sections 2736 et seq.);
  • inspections (Sections 258 et seq.).

There are also expert reports, which provide the court with the technical knowledge it lacks.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Witness evidence is admitted by the court (Section 245 of the Code of Civil Procedure); the court’s order requires the witness to appear to give evidence on pain of coercive measures and a fine if he or she fails to appear.

The court establishes the place, time and manner of the taking of evidence. On the request of the concerned party, the court bailiff serves the summons on the witness. The witness reads out a commitment to tell the truth, and is then questioned by the judge — the parties may not question witnesses directly.

A recently introduced provision allows the court, with the parties’ consent, to take evidence in writing (Section 257 bis of the Code of Civil Procedure).

Expert witnesses are appointed by the court, which gives them questions they are asked to answer; they will also appear at the hearing and swear to tell the truth. As a rule, expert witnesses prepare a written report, but the court may also order them to appear and be questioned orally at the hearing (Section 195 of the Code of Civil Procedure).

Written evidence forms part of the proceedings once it is placed on the party’s file, at the time of first appearance or later, subject to the time limits laid down in law.

2.6 Are certain methods of proof stronger than others?

The Italian legal system attaches the greatest weight to public documents and to irrebuttable presumptions.

Public documents (Sections 2699 et seq. of the Civil Code) are documents drafted, with the required formalities, by a notary (notaio) or other public official authorised to confirm their public status in the place where the document was prepared. Public documents have full value as evidence unless they are shown to be false. Barring this challenge, they constitute absolute and unconditional proof.

Irrebuttable presumptions (Section 2727 of the Civil Code) are even more effective, as they do not admit any proof to the contrary.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

The law requires that certain facts be proven only by means of specific forms of evidence, in some cases requiring public documents, and in other cases requiring written documents that may be public or private.

2.8 Are witnesses obliged by law to testify?

Witnesses are required to testify, unless the law provides otherwise. There are provisions covering the following cases: incapacity to testify; bans on certain persons giving testimony; and the option to refrain from giving evidence. The witness’s obligation to give evidence stems indirectly from the power that Section 255 of the Code of Civil Procedure gives to the court, if the witness fails to appear, to order that the witness be brought to court and to impose a fine.

2.9 In which cases can they refuse to give evidence?

In the cases laid down in the Code of Criminal Procedure, to which the Code of Civil Procedure refers: these cover individuals who may refuse to give evidence because they are bound by professional secrecy, official secrecy or State secrecy.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Under Section 256 of the Code of Civil Procedure, a witness who attends court but refuses to testify without proper justification, or who gives good reason to suspect that he or she is giving false testimony or withholding evidence, will be reported to the public prosecutor by the court by forwarding of a copy of the minutes of the hearing.

2.11 Are there persons from whom evidence cannot be obtained?

Individuals having a personal interest in the facts of the case cannot give evidence, because their interest means that they might be entitled to join the proceedings as a party (Section 246 of the Code of Civil Procedure).

Children younger than 14 may be heard only if their evidence is required by special circumstances (Section 248 of the Code of Civil Procedure).

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

The judge examines the witness, asking direct questions concerning the facts allowed as relevant to the proceedings and any questions on the same facts requested by the parties’ lawyers during the examination.

Videoconferencing, while not expressly provided for by the Code of Civil Procedure, is not excluded. Section 202 of the Code of Civil Procedure provides that, when ordering the taking of evidence, the court shall ‘establish the time, place and manner of obtaining evidence’, and this allows a court to order the hearing of a witness via videoconferencing.

Section 261 of the Code of Civil Procedure also provides that the court may order video recording requiring the use of mechanical means, tools or procedures.

Videoconferencing is expressly provided for by the Code of Criminal Procedure (e.g. in Section 205 ter).

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The court takes no account of any evidence which was not formally submitted and admitted.

3.2 As a party to the case, will my own statement count as evidence?

Your own statement does not count as evidence in your favour. However, it may count as evidence against you if it is a confession made during formal questioning.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 22/01/2018

Taking of evidence - Cyprus

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

In general the burden of proof in civil proceedings rests upon the party that seeks relief, i.e. the plaintiff or claimant, as the case may be.

In exceptional cases, the burden may be transferred to the defendant or respondent. A typical example is that where an action is brought for negligence if it is proved that the plaintiff does not know, or does not have the means to find out, how an accident happened, the damage was caused by an object which was under the sole control of the defendant and the damage is linked to the defendant’s failure to take reasonable care rather than the taking of that care, in which case the res ipsa loquitur (the thing itself speaks) principle applies, where the burden of proof is transferred to the defendant.

In general the plaintiff or claimant must prove by producing relevant witness evidence all the facts necessary for supporting/founding his/her claim.

The court is expected to assess the evidence and render a judgment according to conclusions drawn from the facts of the case. If, under the circumstances, the court is unable to reach conclusions on a certain fact of the case which is important for the determination of the claim, the claim raised by the party that is based on that fact should be dismissed.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

There are certain facts that need not be proved by evidence. These include certain facts which are undoubted and clear, of which the court may be deemed able to have ‘judicial knowledge’. For example, these may include facts relating to units of measurement, monetary issues, the annual calendar and the time difference between countries. Other examples are facts that are common knowledge and are presumed based on human experience, such as the increase in road accidents, problems faced by a widow with underage children, etc. Similarly, historic, scientific and geographic facts are widely known and need not be proved by producing evidence.

Moreover, there are presumptions in certain cases. Presumption means a conclusion which can or must be drawn given that certain facts have been proved. These presumptions may be rebuttable or irrebuttable.

Irrebuttable are those presumptions that are made by law and cannot be rebutted by evidence to the contrary. Irrebuttable presumptions are rare. An example is included in Article 14 of the Criminal Code, which stipulates that a child under the age of 14 is presumed not to bear any criminal liability for any of its actions or omissions. Rebuttable presumptions are much more common. These can be rebutted by evidence to the contrary. For example, a child born in a legal marriage is presumed to be the husband’s child unless proved otherwise.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The standard of proof in civil cases is the 'balance of probabilities’. In other words, the court will find that a fact is established if satisfied by evidence that the fact is more likely to have occurred than not.

2 The taking of evidence

2.1 Does the taking of evidence always require an application from a party, or can the judge in certain cases also take evidence on his/her own initiative?

In civil proceedings the parties to the case will choose what witness evidence to produce to the court. Each party will summon those witnesses that are deemed useful for its case. The court does not have the power to summon witnesses on its own initiative without consent from the parties.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

The procedure is simple. The party wishing to summon a witness will request the court to issue a subpoena. The court will then issue the subpoena, to be served on the witness. Any person on whom such a subpoena has been served is under a legal obligation to appear before the court on such date and time as indicated in the subpoena.

2.3 In which cases can the court reject an application by a party to obtain evidence?

At the request of a party to the case, the subpoena will be issued in most cases. A party’s request for a subpoena may be refused in rare and exceptional cases, if the request is proven frivolous and constitutes abuse of the court proceedings.

2.4 What different means of proof are there?

There are two types of proof: verbal witness testimony presented before the court, and written or documented evidence presented by submitting documents to the court.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

There are no settled rules that govern the obtaining of evidence from expert witnesses. The party producing the evidence should decide whether the expert witness will present his/her testimony in person or the evidence will be presented in written form.

2.6 Are certain methods of proof stronger than others?

There is no general rule pointing to a certain type of witness as being better or more reliable or more convincing than other types of evidence. All the evidence produced during the trial will be assessed by the court in the light of the specific circumstances at hand in each case.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

No, there are no such rules.

2.8 Are witnesses obliged by law to testify?

If a subpoena is served on a person calling him/her to appear and testify before a court, he/she is obliged by law to do so. Failure or refusal to do so constitutes contempt of court and is punished accordingly.

2.9 In which cases can witnesses refuse to give evidence?

Witnesses may not refuse to give evidence. However, witnesses may, in exceptional cases, refuse to answer certain questions or withhold certain documents on the grounds of privilege, such as professional confidentiality.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

See the answer to subparagraph (a) above.

2.11 Are there persons from whom evidence cannot be obtained?

All persons are competent to give evidence in any civil proceedings unless the court decides that, due to youth, mental disability or other similar cause, a person is incapable of appreciating his/her obligation to tell the truth, or understanding the questions addressed to him/her, or giving rational answers to these questions (according to Article 13 of the Evidence Act).

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

A witness will be examined during the main examination by the party who called him/her. Upon completion of the main examination, the witness will be cross-examined by the other party. Finally, the court may ask questions where further clarification on certain issues is deemed to be necessary.

A witness may give evidence by teleconferencing or other technical means if his/her physical presence before the court is impossible, provided that the court is capable of providing such technical facilities. Any specific conditions imposed will depend on the specific circumstances of the case at hand.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Any evidence which is obtained illegally, in breach of constitutionally protected rights, will be excluded from any court proceedings, and the court may not rely on that evidence. A typical example of that is the illegal recording of a personal conversation.

3.2 As a party to the case, will my own statement count as evidence?

A statement made by a person who is a party to the case does count as evidence. The fact that such a statement comes from a person who has a direct interest in the outcome of the case is just one of the numerous facts to be taken into account by the court in assessing or evaluating the overall evidence.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 26/03/2018

Taking of evidence - Latvia

TABLE OF CONTENTS


1 The burden of proof

A party is responsible for proving the facts on which that party’s claims or objections are based. The plaintiff must substantiate his or her claims and the defendant must substantiate his or her objections.

1.1 What are the rules concerning the burden of proof?

Evidence is submitted by the parties to the case and by other interested parties. If a party to the case or other interested party is unable to produce certain evidence, and makes a reasoned request to that effect, the court may require the evidence to be produced.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

If the court acknowledges a fact to be common knowledge, it need not be proved.

Facts established in a judgment that has taken legal effect in one civil dispute need not be proved again in other civil disputes involving the same parties.

A court judgment which has taken legal effect in a criminal case is binding on a court adjudicating a case regarding the civil liability of the person who was the subject of the criminal judgment, but only with respect to the question whether there was a criminal act, or failure to act, and the question whether it was committed or permitted by that person.

Facts which are deemed to be established by law need not be proved. Such presumptions may be rebutted in accordance with the ordinary procedure.

A party need not prove facts which are not disputed by the other party in accordance with the procedures laid down in the Law on Civil Procedure.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

A court must assess the evidence to its own satisfaction, on the basis of evidence that has been thoroughly, completely and objectively examined in court, and in accordance with a judicial approach founded on logical principles, scientific findings and observations drawn from every-day experience. A court must set out in its judgment why it has given preference to one item of evidence in preference to another, and has found certain facts to be proven and others not. No evidence has a predetermined effect binding upon the court.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

The Law of Civil Procedure states that the parties are responsible for submitting evidence, but it also provides for certain cases where the court may require evidence on its own initiative (for instance where the interests of a child are involved). If the court finds that no evidence has been submitted to substantiate a fact or facts on which a party’s claims or objections are based, it notifies the parties accordingly, and if necessary sets a time‑limit within which the evidence can be submitted.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Written and material evidence is submitted to the court by the parties. Where the parties make reference to oral evidence the court invites the witnesses indicated by the parties to a court hearing to hear their testimony. The court adds the evidence to the case file.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court allows only evidence that is provided for by law and of relevance to the case. The court may refuse to accept evidence submitted later than 14 days prior to the court hearing, unless the judge has set a different time‑limit for the submission of evidence. While a case is being adjudicated, evidence may be submitted at the reasoned request of a party to the dispute or another interested party, if this does not delay the adjudication of the case, or the court has accepted that there are valid reasons why the evidence was not submitted in good time, or the evidence concerns facts that have come to light in the course of the proceedings.

Witness testimony based on information from unknown sources, or on information obtained from other persons, unless such persons have been examined, are not admissible in evidence.

2.4 What different means of proof are there?

Observations submitted by parties to the dispute and by interested third parties which include information about facts on which their claims or objections are based, if corroborated by other evidence verified and assessed at a court hearing;

the testimony of witnesses and experts;.

written evidence, consisting of documents or other texts in which information on facts that are relevant to the matter is recorded by means of letters, figures and other written symbols or other technical means, and any corresponding recording media (audio or video tapes, diskettes, etc.);

  • material evidence;
  • expert reports;
  • expert opinion;
  • reports by public bodies.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

There is no substantial difference: the testimony of experts and other witnesses is evidence, and written statements by experts are also evidence. A witness or an expert has to appear in court when summoned by the court to provide true testimony regarding the circumstances known to them (witnesses) or to provide an objective opinion in their own name regarding the scientific, technical, artistic or other facts they have investigated.

2.6 Are certain methods of proof stronger than others?

No evidence has a predetermined effect binding upon the court, but in its judgment the court has to explain why it has given preference to some evidence over other evidence, and has found certain facts to be proven and others not.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Yes. Facts which by law can be proved only by certain forms of evidence cannot be proved using any other form of evidence.

The court admits only the forms of evidence provided for by law.

2.8 Are witnesses obliged by law to testify?

A witness who has been summoned to court does not have the right to refuse to give evidence except in cases provided for by law.

2.9 In which cases can they refuse to give evidence?

The following persons may refuse to testify:

  • relatives in the direct line and of the first or second degree in a collateral line, spouses, relatives by marriage of the first degree, and family members of the parties;
  • guardians and trustees of parties, and persons under the guardianship or trusteeship of the parties;
  • persons involved in litigation in another matter against one of the parties.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A witness who has reached 14 years of age who refuses to testify for reasons which the court finds to be invalid, or who intentionally gives false testimony, commits an offence under the Criminal Law.

If a witness, without proper cause, fails to appear in response to a summons by a court or a judge, the court may impose a fine not exceeding EUR 60 or have the witness compelled to come to court.

2.11 Are there persons from whom evidence cannot be obtained?

Ministers of religion are not required to give evidence regarding facts that have come to their knowledge through hearing confessions, and persons whose position or profession does not permit them to disclose certain information entrusted to them are not required to give evidence regarding such information;

  • minors are not required to testify regarding facts which constitute evidence against their parents, grandparents, brothers or sisters;
  • persons whose physical or mental deficiencies render them incapable of properly assessing circumstances relevant to the case are not required to give evidence;
  • children under the age of seven are not required to give evidence.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

A person summoned as a witness must appear in court and give true testimony regarding any fact of which they have knowledge. A witness must answer questions asked by the court and the parties. A court may question a witness at the witness’s place of residence, if the witness is unable to attend pursuant to a court summons because of illness, old age or invalidity or for another valid reason. A witness may also be questioned by videoconference in court, depending on the witness’s whereabouts, or at a place specially equipped for such a purpose.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The parties to a dispute may dispute the veracity of written evidence.

Written evidence may not be disputed by the person who himself or herself has signed such evidence. Such a person may dispute the evidence by bringing a separate action, if their signature was obtained under the influence of duress, threat or fraud. A party may also submit a substantiated application alleging forgery of written evidence. If the court finds that the evidence has been forged, it will exclude the evidence and notify a public prosecutor of the forgery. In order to examine an application alleging forgery of written evidence, the court may order an expert report or require other evidence. If the court finds that a party has initiated a dispute regarding the forgery of written evidence without good cause, it may impose a fine.

The Law on Civil Procedure requires a person summoned as a witness to appear in court and give true testimony regarding any fact of which they have knowledge. If a party wants to prove certain circumstances by witness testimony, the party must in their request to the court seeking to have the witness questioned indicate what important aspects of the case the witness would be able to confirm.

3.2 As a party to the case, will my own statement count as evidence?

Observations by parties to the dispute and third parties which include information about the facts on which their claims or objections are based are admitted as evidence if corroborated by other evidence that is verified and assessed at a court hearing. If one party admits the facts on which the claims or objections of the other party are based, a court may find such facts to be proven, provided the court has no doubt that the admission was not made as a result of fraud, violence, threat or error, or in order to conceal the truth.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 29/10/2017

Taking of evidence - Luxembourg

Please note that the original language version of this page French has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

Under Luxembourg law, the basic principle is that persons requesting enforcement of an obligation must prove their case. Similarly, persons who claim to be no longer bound by an obligation must prove that they have made the payment or performed the act which relieved them of their obligation.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

In certain cases Luxembourg law provides for presumptions which release a person from having to prove a fact that would be difficult or impossible to show. Presumptions are conclusions which the law or a court draws about an unknown fact from a known fact.

The law distinguishes between two kinds of presumption: firstly there are legal presumptions which are attached to certain acts or facts by a specific law. Then there are presumptions which are not established by law and which are left to the discretion of the court, which will accept only presumptions that are serious, precise and consistent.

Generally speaking, it is possible to provide evidence to rebut presumptions. For example, where a child is born to a married couple the mother’s husband is presumed to be the child’s father. An action may nevertheless be brought to contest paternity.

More rarely, presumptions can be irrebuttable, meaning that it is not possible to produce evidence against them.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

Appraisal of the facts is left to the discretion of the court, which is absolute. If there is any doubt, the court will ascertain whether there is serious, precise and consistent evidence and will accept or reject the evidence depending on the plausibility of the facts alleged.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

The taking of evidence can be ordered by a judge at the request of a party. However, judges may also take evidence of their own motion.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

The judge informs the designated expert of the nature of the task. The parties to the case and any third parties who are required to assist the investigation are summoned by the expert. In accordance with the adversarial principle, evidence must be taken in the presence of the parties.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The taking of evidence can be ordered whenever a judge does not have enough information on which to base a decision.

The taking of evidence in respect of an alleged fact can be ordered only if the party making the allegation does not have sufficient evidence to prove it. In no circumstances may the taking of evidence be ordered in order to compensate for a party’s negligence in assembling the evidence.

Judges must also limit the choice of measure to what is sufficient for resolving the dispute; they must opt for the simplest and least expensive solution.

2.4 What different means of proof are there?

The different means of proof are documentary evidence, oral evidence, presumptions, admission and sworn evidence.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

  • Methods of obtaining evidence from witnesses and from expert witnesses:

When witness evidence is admissible, judges may take evidence from third parties who, because of their personal knowledge of the facts at issue, may be able to shed light on them. This evidence may take the form of statements or be gathered by investigative methods, depending on whether it is written or oral.

Judges may ask for clarification to be provided by anyone they choose, in the form of statements, consultations, or an expert opinion on a matter of fact that requires elucidation by an expert. If the opinion does not need to be in writing, the judge may allow expert witnesses to give their opinion orally at a hearing; a record of this opinion is drawn up and is signed by the judge and the clerk of the court.

  • Rules applying to the presentation of written evidence and written reports or opinions by expert witnesses:

Written evidence:

A party relying on a document is obliged to make it available to any other party to the case. It is made available against receipt or by lodging with the court registry. Documents must be made available without prompting.

Experts’ written reports or opinions:

Experts lodge their reports with the court registry. A single report is drawn up, even if there are several experts; if they disagree, each expert gives his or her opinion. If the expert has asked for an opinion from another expert in a specialisation differing from his or her own, that opinion is annexed to the record of the hearing or to the file, depending on the case.

2.6 Are certain methods of proof stronger than others?

Some methods of proof are stronger than others:

  • An official record (acte authentique) drawn up by a public official (notary, bailiff, etc.) acting in his official capacity constitutes proof unless shown to be false.
  • A private agreement drawn up by the parties themselves and signed by them, without involving a public official, constitutes proof in the absence of evidence to the contrary.
  • Oral evidence and other methods of proof are left to the judge’s discretion.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Written proof is necessary to substantiate a legal document (contract) the value of which exceeds €2 500. Proof of a fact (e.g. an accident), however, may take any form.

2.8 Are witnesses obliged by law to testify?

The law requires witnesses to cooperate in legal proceedings with a view to discovering the truth.

2.9 In which cases can they refuse to give evidence?

People who can prove that they have good cause may be exempted from giving evidence. Parents or other direct relatives of one of the parties may refuse to give evidence, as may a party’s spouse, even if they are divorced.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Defaulting witnesses may be summoned to appear at their own expense if their testimony is felt to be required. Defaulting witnesses and persons who, without good cause, refuse to give evidence or to take an oath may be subject to a civil penalty of between €50 and €2 500.

The fine and any costs may be waived if a person can prove that he or she was unable to attend on the day stipulated.

2.11 Are there persons from whom evidence cannot be obtained?

Anyone can be called as a witness except persons who are judged unfit to do so.

People who are unable to give evidence may nevertheless be heard under the same conditions, but without taking an oath. However, descendants may never give evidence regarding the facts relied on by spouses in an application for divorce or separation.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

  • Role of the judge and the parties when hearing a witness

Judges hear evidence from witnesses separately, in the order decided by the judge, when the parties are present or have been called. Witnesses may not read from a script.

Judges may hear evidence from or question witnesses on any matter on which evidence may be taken by law, even if such matters are not mentioned in the decision ordering the taking of evidence. They may recall witnesses, confront them with each other or with the parties, and, if necessary, hear their evidence in the presence of a technical expert.

The parties may not interrupt, question or attempt to influence witnesses who are giving evidence, or address them directly, under pain of exclusion. After the judge has finished questioning a witness the judge may, if he or she considers it necessary, put further questions to the witness that have been submitted to the judge by the parties.

  • Videoconferencing or other technical measures

Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters is intended to improve, simplify and accelerate cooperation between the courts of the Member States in the taking of evidence. There is no specific provision on videoconferencing in Luxembourg law. Videoconferencing is subject to the ordinary rules of the New Code of Civil Procedure on the hearing of witnesses, personal appraisal by the judge, and appearance in person. Courts are equipped with the necessary technical equipment. On the date set for a videoconference, a judge, a registrar, an interpreter and a technician are present.

The judge may have an audio or video recording made of all or part of the preparatory inquiries. The recording is kept at the court registry. Either party may ask for a copy or a transcription at their own expense.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The court will not accept evidence obtained by unlawful means, such as a hidden camera or a telephone tap of which the person was unaware.

3.2 As a party to the case, will my own statement count as evidence?

Statements made by a party to the case have no evidential value.

Related links

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The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 16/04/2018

Taking of evidence - Hungary

Please note that the original language version of this page Hungarian has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 The burden of proof

The burden of proof rests on the party whose interests are affected negatively if the effort to provide evidence is unsuccessful.

1.1 What are the rules concerning the burden of proof?

Unless otherwise provided by law, it is the obligation of the parties to provide the necessary evidence to enable their legal dispute to be ruled on. Unless the law provides otherwise, the legal consequences of failure to provide evidence within the specified time limit or failure of the evidence process must be borne by the party subject to the burden of proof. In general terms, the facts necessary for a court to make a decision on a dispute must be proved by the party in whose interest it is that the court accept them as true.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Hungarian law endorses the concept of presumptions (assumptions that must be considered true in the absence of evidence to the contrary). In family law, there is a limited number of irrebuttable presumptions and facts that the law does not allow to be rebutted.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The Hungarian rules of civil procedure do not provide for any minimum degree of certitude by the court. Unless the law provides otherwise, the court is not restricted to the application of specific formal rules, methods or means of evidence and is free to rely on evidence from the parties or any other evidence which is suitable to establish the facts of the case. This, however, does not apply to statutory presumptions, including legislative provisions stipulating that certain facts must be regarded as true unless evidence is provided to the contrary. The court establishes the facts of the case by comparing the pieces of evidence submitted by the parties and others emerging in the process of adducing facts. The court assesses the available evidence as a whole and passes judgment according to its conviction.

2 The taking of evidence

The court takes evidence to establish the facts necessary for a decision on a dispute.

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

In general terms, the facts necessary for a decision on a dispute must be proved by the party in whose interest it is that the court accept them as true. The court may call for the provision of evidence of its own motion if this is permitted by law.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Witnesses are heard, opinions are obtained from appointed experts and, if needed, experts are also heard. Site inspections are carried out and holders of documentary and material evidence are required to produce such evidence.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court is not bound by any application for or decision regarding the provision of evidence. The court may reject an application for the provision of evidence or abandon a previously granted application for the provision of evidence (or the resubmission of evidence or provision of further evidence) if such evidence is unnecessary for passing a judgment on the dispute. Unless the law provides otherwise, the court must refuse an application for the provision of evidence if the party failed to submit it within the specified time limit for a reason attributable to him/her, or if the application was submitted in a manner incompatible with due process.

2.4 What different means of proof are there?

Means of proof include evidence obtained from witnesses, expert opinions, site inspections and documentary and material evidence. No declarations on oath may be made in the proceedings.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

In accordance with the principle of direct evidence, as a general rule witnesses and experts give evidence at a direct hearing.

Written evidence must be produced by the party having the burden of proof as an attachment or produced at the hearing in the form of a document supporting the evidence in question. At the request of this party, the adverse party may also be required by the court to present any document in his/her possession that must also be disclosed or presented under the provisions of civil law. If the document is held by a party not involved in the proceedings, such party must be heard as a witness and, at the same time, required to present the relevant document. If the document invoked as written evidence is held by a court, other authority, a civil law notary or an organisation and its disclosure cannot be requested directly by the party, the court will take the measures necessary to obtain the document at the party's request.

2.6 Are certain methods of proof stronger than others?

Generally not.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

There is no such obligation, in general. In exceptional cases, for example in proceedings to declare a person's incapacity, the court is required to invite a medical psychiatric expert to assess the defendant’s mental state.

2.8 Are witnesses obliged by law to testify?

Yes, but in certain cases they may refuse to testify.

2.9 In which cases can they refuse to give evidence?

The following persons may refuse to give evidence:

  • relatives of either party;
  • a person who would in his or her testimony blame himself/herself or a relative of having committed a criminal offence with respect to the relevant issue;
  • a lawyer, medical doctor or any other person who is committed to secrecy by his/her profession if their testimony would mean violating their secrecy obligation, unless the party concerned exempts them from that obligation;
  • the mediator/expert in mediation proceedings involved in the dispute;
  • a person bound to confidentiality of business secrets with respect to matters in which giving evidence would mean violating their confidentiality obligation;
  • providers of media content and persons in an employment or similar relationship with such providers, with respect to issues in which their testimony would mean revealing the identity of the person who provided them with information in the context of his/her activity as a provider of media content.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

The court may require reimbursement of costs incurred and impose a fine on

  • a witness or expert who did not appear before the court despite a valid summons (order) and did not justify his or her absence beforehand with a well-founded reason or left without permission;
  • a witness who refuses to give testimony or cooperate, or an expert who refuses to give his or her opinion without providing a reason or despite the final decision of the court and after being warned of the consequences;
  • an expert who does not provide an opinion within a reasonable period without providing a reason for such delay or fails to inform the court of a foreseeable delay within the time limit specified for that purpose.

The court may also order a witness or expert absent from (or having left) the hearing to be brought before it by force. The witness or expert must be brought to court by force if he or she failed to appear before the court repeatedly despite a valid summons (order) and did not justify his or her absence beforehand with a well-founded reason or left without permission. The fee of an expert failing to deliver an opinion within a reasonable period may be reduced.

The above coercive measures may not be taken against witnesses who are minors under 14 years of age. If the legal representative of the minor is unable to prove that the minor witness’s failure to appear at court was not attributable to him or her, the representative will be subject to sanctions or required to pay the costs incurred.

2.11 Are there persons from whom evidence cannot be obtained?

Persons who cannot be expected to give sound evidence owing to a physical or mental handicap may not be heard as witnesses.

Witnesses who were not exempted from their confidentiality obligation may not be heard in matters that involve classified information.

Minors below 14 years of age may only be heard as witnesses if they are regarded as the only source of evidence.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Witnesses appear at the hearing by summons of the court where in principle they will be heard by the presiding judge or, in the case of a single judge, the judge proceeding in the case. The other members of the court may also ask questions of the witnesses. The parties to the proceedings may also put questions. The presiding judge may also allow the parties, at their request, to address their questions directly to the witness. The presiding judge decides whether to allow the parties to put questions directly to the witness.

In proceedings of exceptional significance (proceedings brought for the enforcement or establishment of payment claims in excess of HUF 400 million, falling within the competence of regional courts (törvényszék)), the presiding judge directs the hearing, but the parties may put questions directly to the witnesses. Following the parties to the proceedings, the head of the panel of judges and the other members of the panel may also put questions to the witnesses. If none of the parties wish to exercise the above right, witnesses will be heard first by the presiding judge, followed by the other members of the panel, and finally the party requesting the hearing of the witness and then the adverse party may also ask questions. The adverse party may object to any question put by a party to the witness which may unduly influence the answer of the witness, is suggestive of a specific answer, has no relevance to the case or concerns a fact already clarified. The presiding judge decides if it sustains the objection to the question.

3 The evaluation of the evidence

The court establishes the facts of the case by comparing the pieces of evidence submitted by the parties and others emerging in the process of adducing facts. The court assesses the available evidence as a whole and passes a judgment according to its conviction.

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Evidence obtained illegally may be taken into account in civil proceedings, but if such evidence infringes on privacy rights the party submitting the evidence can be prosecuted for the infringement. In administrative proceedings – given that in such proceedings the applicant contests the legal validity of an administrative decision – such evidence is treated differently, in as much as evidence relating to a fact serving as the basis for the administrative authority's decision not legally obtained as part of the authority’s actions prior to the proceedings may not be invoked as valid evidence for the legality of the decision in the proceedings.

3.2 As a party to the case, will my own statement count as evidence?

Yes, but the truth of the statement will be taken for granted by the court only if the adverse party does not question it and the court has no doubts as to the truth of the statement. In all other cases, the content of the statement is subject to the burden of proof.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 16/10/2017

Taking of evidence - Malta

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The burden of proof is on the person making an allegation, as is clear from section 562 of the Code of Organisation and Civil Procedure: “the burden of proving a fact shall, in all cases, rest on the party alleging it”.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Yes, these rules exist and are found in section 627 et seq. of the Code of Organisation and Civil Procedure. Section 627 mentions documents requiring no proof of authenticity other than that which they bear on the face of them, including:

  • the acts of the Government of Malta, signed by the Minister or by the head of the department from which they emanate, or in his absence, by the deputy, assistant, or other officer next in rank, authorised to sign such acts;
  • the registers of any department of the Government of Malta;
  • all public acts signed by the competent authorities, and contained in the Government Gazette
  • the acts of the Government of Malta printed under the authority of the Government and duly published;
  • the acts and registers of the courts of justice and of the ecclesiastical courts, in Malta;
  • the certificates issued from the Public Registry Office and the Land Registry;
  • the sea-protest made under the authority of the Civil Court, First Hall;
  • other documents mentioned in the Merchant Shipping Act (including registration certificates signed by the registrar or other authorised official and any other thing written down on the registration certificate which appears signed by the registrar or other authorised official)

There are other documents that can be produced and their content is exempt from the burden of proof, however their authenticity must be proved and these include:

  • the acts and registers of any establishment, or public body, authorised or recognized by law or by the Government;
  • the parochial acts and registers relative to births, marriages and deaths, and the dispositions made according to law in the presence of a parish priest;
  • the acts and registers of notaries public in Malta;
  • the books of traders kept according to law, only with regard to any agreement or other transaction of a commercial nature;
  • the books of public brokers kept according to law, with regard to anything which may have taken place between contracting parties in commercial matters.

Evidence may be produced that runs counter to the contents of these types of documents.

Apart from these documents, there is another presumption regulated by Cap 16 of the Laws of Malta, the Civil Code, namely that a child born in wedlock is the issue of the wife’s husband. This legal presumption may be proven to be no longer valid by means of a sworn application in the Civil Court (Family Section) and the production of evidence that such a presumption is not valid.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

In order to pass sentence in civil cases, a court must be satisfied that sufficient proof on a balance of probabilities has been produced.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

Every party in a court case, whatever his interest might be, may testify, either at his/her own request, at the request of another party in the case, or when summoned to do so ex officio by the court. When proceedings commence by means of a sworn application, a list of witnesses must be drawn up. The same applies to the sworn reply – it must include this list of witnesses. If a party needs to produce a witness who has not been so indicated, the relevant application must be filed.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Once an application for the taking of evidence has been accepted, the witnesses are summoned to appear by means of a subpoena issued after an application by the party wishing to produce them. Requests for the issue of this subpoena in the Court of Magistrates (Malta) and in the Courts of Magistrates (Gozo) in its inferior jurisdiction may be made verbally.

2.3 In which cases can the court reject an application by a party to obtain evidence?

A court may reject an application by a party to obtain evidence when the person summoned is a lawyer, a legal procurator or a priest. Moreover, as a rule, no person present during a sitting can be produced as a witness in the same case. However, it is left to the court’s discretion to dispense with this rule in particular cases if there are good reasons for doing so. There are also special laws which regulate official secrecy and do not permit the disclosure of secret and confidential information. Furthermore, the claim may be dismissed if the court believes that the witness is not relevant.

2.4 What different means of proof are there?

There are three means of proof that can be produced and these are: documents, viva voce and affidavits.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

The general rule is that the examination of witnesses in the hearing of cases is made in open court and viva voce. However, the law provides for other methods of taking of evidence that can be used:

  • Evidence may be produced by affidavit both for witnesses resident in Malta and those resident abroad.
  • In the case of a person who is going to leave Malta or is ill or elderly, or who is likely to die or become incapacitated before the hearing of the case, or cannot appear in a sitting, the court may engage a judicial assistant to hear that person. In that case, the questions directed at the witness, together with his answers, shall be put in writing, and the witness shall sign the evidence or put the mark of a cross instead of the signature.
  • The court may also nominate a Supplementary Judge to hear a particular witness in the case of witnesses who cannot leave their house because of their age.
  • If a witness resides abroad, a lawyer, by means of application, may request a hearing through letters of request (rogatory request) – the party requesting the hearing of this witness shall produced written questions, and submit the name and address of the person who shall appear on his behalf during the hearing of the witness;
  • If the court considers it appropriate, it may permit a tape or video recording to be made of the evidence required from the witness;
  • The court may engage legal referees giving them the power to hear witnesses and administer oaths.

When a legal referee is engaged to take evidence, he has the same means that courts have at their disposal.

2.6 Are certain methods of proof stronger than others?

All means of proof are considered of to be equal importance.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

No, but the best proof must always be produced.

2.8 Are witnesses obliged by law to testify?

Yes, the law obliges all summoned witnesses to testify. However, a witness cannot be compelled to answer questions that may result in him being the subject of criminal prosecution.

2.9 In which cases can they refuse to give evidence?

The husband or wife of any party in a court case are competent witnesses and may be compelled to testify in a case at the request of any of the parties. However, the husband cannot be compelled to reveal anything that his wife may have told him in confidence during their marriage, and vice versa, nor can one spouse be compelled to answer questions which may result in the other spouse being the subject of criminal prosecution.

Other exempt facts include those entrusted to lawyers, legal procurators or priests. However, if a lawyer or a legal procurator obtains his client’s consent, or the priest obtains the consent of the person who confessed, they may be questioned about matters that came to their knowledge (subject to consent); the lawyer and the legal procurator regarding what has been entrusted to them by the client for the purposes of the case, and the priest for those facts he becomes aware of under the seal of the confessional or through a confession.

Except by court order, accountants, doctors, social workers, psychologists and marriage counsellors cannot be asked to reveal information given to them by their clients under professional secrecy or if they became aware of such information in their professional capacity. This privilege is also extended to the interpreter engaged to convey such secret information.

A witness bound by professional secrecy cannot reveal secret and confidential information, except in certain circumstances according to the particular law applicable to the case.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

If a regularly summoned witness does not appear when called, he is guilty of contempt of court and is immediately condemned and fined. The court can also, through a warrant of escort or arrest, compel him to appear and testify in a subsequent sitting. However, the court may waive the fine imposed if good reasons are provided for the failure to appear.

2.11 Are there persons from whom evidence cannot be obtained?

Any person of sound mind, if there are no exceptions regarding his competence, may be produced as a witness. A witness of any age may be produced as long as he is aware of the fact that giving false evidence is wrong.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

During the examination or cross-examination, the court may ask the witness any question it deems necessary or expedient. On the other hand, each party in the case, whatever his interest, may testify at his/her own request, at the request of another party in the case, or when summoned to do so ex officio by the court.

In cases involving minors, the judge generally hears the minor in camera or a Children’s Advocate is appointed to hear the minor.

Witnesses living outside Malta may be heard in video conference.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

If evidence has not been obtained by illegal means, the court has no restrictions when delivering its judgement. The only exception is that, as a rule, the court does not take cognizance of evidence regarding facts that the witness says he became aware of from others, or of facts stated by other parties who can be produced to testify accordingly.

3.2 As a party to the case, will my own statement count as evidence?

Yes, statements made by a party to a case are admissible.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 22/03/2017

Taking of evidence - Austria

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

In principle, each party is required to list all the factual claims justifying their application (persuasive burden ¬– Behauptungslast) and to provide the appropriate evidence (Sections 226(1) and 239(1) of the Austrian Code of Civil Procedure (ZPO)). If the facts of the case remain unclear (a ‘non liquet’ situation), the court must nevertheless reach a decision. In such cases the rules on the burden of proof come into play. Each party carries a burden of proof to ensure that the all the conditions of the rules favourable to it are met. Under normal circumstances, claimants must assert all the facts in support of their claim and defendants must assert all the fact in support of their objections. The claimant also bears the burden of proving that the procedural requirements are met.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Facts which are material to the judgment must be proved, unless they are exempt from the need for proof. There is no need to prove facts which have been conceded (Sections 266 and 267 ZPO), obvious facts (Section 269 ZPO) or legally presumed facts (Section 270 ZPO).

A conceded fact is one which a party accepts to be a correct claim by the opposing party. The court is in principle required to accept a conceded fact as correct and to reach its decision without further examination.

A fact is obvious if it is common knowledge (i.e. known or reliably perceptible at any time to a large number of people) or known to the court (to the trial court on the basis of its own official findings or clearly apparent from the files).

The court is required ex officio to take account of obvious facts in its ruling; they need not be claimed or proved.

A legal presumption results directly from the law and has the effect of reversing the burden of proof. The opposing party of the party benefiting from such a presumption must provide evidence to the contrary. It must prove that, despite there being a basis for a legal presumption, the presumed facts or legal situation do not exist.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The purpose of court proceedings is to convince the judge of a fact. Generally speaking, a 'substantial likelihood' must be assumed and ‘absolute certainty’ is not required in order to convince the judge.

Degrees of the standard of proof are established by statutory or case law ranging from 'significant likelihood' (e.g. Section 138(1) or Section 163(1) of the General Civil Code) to 'likelihood bordering on certainty"'. In the former case, presumption or a certificate are sufficient as a standard of proof under the Code of Civil Procedure (Section 274). Prima facie evidence also leads to a reduction of the standard of proof and plays a role in overcoming difficulties in providing evidence in damages actions. If there is a typical course of events for which experience of life suggests a specific causal link or fault, these conditions are deemed to be proved on the basis of prima facie even in individual cases.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

Evidence may be taken by judges on their own motion or following the application of a party. In proceedings of a purely investigative nature (where the court is required to establish the decisive facts of the case on the judge's own motion), there is no need for an application by the parties. In standard proceedings under the Austrian Code of Civil Procedure, the judge is able on his own motion to take any evidence expected to clarify material facts (Section 183 ZPO). The judge may instruct the parties to produce documentary evidence, require a local inspection to be carried out or order the taking of evidence in the form of expert opinions or an examination of the parties. However, documentary evidence may be presented only if at least one of the parties has referred to it and documentary evidence may not be admitted or witnesses heard if this is opposed by both of the parties. In all other cases, evidence is taken on an application to obtain evidence by one of the parties.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

In principle, evidence is taken at the oral hearing. During the ‘preparatory’ meeting (Section 258 of the Code of Civil Procedure), a trial schedule is drawn up jointly by the court and the parties and/or their representatives which also contains a schedule for the taking of evidence. Where necessary, however, a further discussion concerning the progress of the proceedings may take place at any time. Once evidence has been taken, the outcome is discussed with the parties (Section 278 ZPO). Evidence must be taken directly by the judge who will decide on the matter. In those cases expressly covered by law, evidence may also be taken during the mutual assistance procedure. The parties must be summoned for the taking of evidence and have various rights to participate, such as the right to put questions to witnesses and experts. Evidence is always taken on the judge's own motion, in principle even if, despite being called, the parties are not present

2.3 In which cases can the court reject an application by a party to obtain evidence?

An application by a party to obtain evidence must be rejected if the court considers it to be irrelevant (Section 275(1) of the Code of Civil Procedure) or if it is submitted with the intention of delaying proceedings (Sections 178(2), 179 and 275(2) of the Code of Civil Procedure). It is also possible to set a time limit for taking evidence that is likely to delay the proceedings (Section 279(1) ZPO). Once this has expired, the application to take evidence may be rejected. It may also be rejected if it is unnecessary because the court has already been convinced or the fact does not need to be proved or the taking of evidence is prohibited. Where the taking of evidence gives rise to costs (e.g. expert evidence), an advance payment must be obtained from the applicant party. If this is not paid within the deadline set, the evidence may only be given at a later date if this will not cause a delay in the proceedings.

2.4 What different means of proof are there?

The Austrian Code of Civil Procedure provides for five ‘classical’ means of proof: documentary evidence (Sections 292 to 319), the testimony of witnesses (Section 320 to 350), expert evidence (Sections 351 to 367), judicial inspection (Sections 368 to 370) and examination of the parties (Sections 371 to 383). In principle any source of information may be admitted in evidence and will be classified as one of the above means of proof according to the form it takes.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Witnesses are heard individually in the absence of witnesses to be heard subsequently. This prevents them from influencing each other’s testimony. If the testimony of witnesses is contradictory, they may be examined concurrently. Examination of witnesses begins with general questioning to establish if the witness is disqualified from testifying for any reason, has the right to remain silent or whether there are any factors preventing him from taking oath. Once the witness has been cautioned to tell the truth and advised of the consequences under criminal law of giving false testimony, the actual examination begins with the witness being asked to provide his personal particulars. The witness is then questioned on the case itself. The parties may take part in the witness examination and, if approved by the court, put questions to witnesses. The judge may reject inappropriate questions. In principle, witnesses must be examined directly before the sentencing court, although it is possible under certain circumstances for witnesses to be examined through the channels of mutual judicial assistance (Section 328 ZPO).

Expert witnesses are deemed to ‘assist’ the court. While witnesses gives testimony concerning facts, experts provide knowledge which the judge does not possess. Expert evidence must in principle be taken before the trial court. An expert may be also called without restriction on the judge's own motion. Expert witnesses must submit their findings and a report. An oral report must be given during the oral hearing. Written reports must be explained by the expert during the oral hearing if this is requested by the parties. The findings and report must be substantiated. Private reports are not considered to be reports within the meaning of the Code of Civil Procedure and have the status of private documents.

Austrian law does not allow proceedings to be conducted entirely in writing. However, since the means of proof are not in any way limited, the possibility does exist of witnesses giving their testimony in writing. However, written witness statements are treated as documentary evidence and are subject to independent assessment by the court. If the court deems it necessary, the witness must appear before the court, unless both parties object to examination of that witness.

2.6 Are certain methods of proof stronger than others?

The principle of the "free assessment of evidence" is enshrined in the Code of Civil Procedure (Section 272). The assessment of the evidence is the examination of the results of the evidence taken by the judge. In carrying out this assessment, the judge is not bound by any statutory rules regarding the evidence but must judge in accordance with his personal conviction whether the evidence is correct or not. There is no hierarchy applicable to methods of proof. Written evidence is deemed to be documentary evidence unless it is an expert report. Public documents issued in Austria are presumed to be authentic, i.e. it is assumed that they are indeed attributable to the issuer indicated. Their accuracy is also fully presumed for the purposes of evidence. Provided they are signed, private documents are also fully accepted as evidence that the statements they contain were made by the person who signed them. Their accuracy is always subject to the free assessment of evidence.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

The Austrian Code of Civil Procedure does not require certain types of evidence to be considered in specific cases. The amount of the claim has no bearing on the choice of method of proof.

2.8 Are witnesses obliged by law to testify?

Witnesses are obliged to appear in court, to give testimony and, if asked, to take an oath. If a duly summoned witness fails to attend the hearing without sufficient reason, the court must first impose an administrative fine and, if he fails to attend a second time, order that he be brought to the hearing by force. If witnesses refuse to testify without giving any reason or who give an unjustified reason may be forced to testify. False testimony by a witness before the court will result in criminal proceedings.

2.9 In which cases can they refuse to give evidence?

Where there are grounds for refusing to give evidence (Section 321 of the Code of Criminal Procedure), the witness is entitled to refuse to answer a question or individual questions. There is no full right to refuse to give evidence. Such grounds are scandal or the risk of criminal prosecution for the witness or a person close to him, a direct financial disadvantage for the same persons, state-recognised obligations to remain silent, the potential disclosure of artistic or business secrets and the use of a voting right which has been declared secret by law. The court must advise witnesses of these grounds before they are examined. Witnesses who wish to exercise their right to remain silent must state their reasons.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

It is up to the court to decide whether the refusal by a witness to give evidence is lawful. Witnesses who refuse to testify without giving any reason or who give a reason which the court considers unjustified may be forced to testify (Section 354 of the Enforcement Code - Exekutionsordnung). Witnesses may be forced to testify by means of fines and, to a limited extent, imprisonment and are also liable vis-à-vis the parties for any damage caused as a result of an unjustified refusal to give evidence.

2.11 Are there persons from whom evidence cannot be obtained?

Evidence cannot be obtained from persons who were or are unable to witness the facts to be proved or to communicate what they have witnessed. They are considered to have an ‘absolute’ physical inability to testify (Section 320(1) ZPO). In the case of minors or mentally ill persons, the court must decide on a case-by-case basis whether they are unable to give evidence. There are also three cases of ‘relative’ inability to testify (Section 320(2-4 ZPO), which apply to religious professionals in respect of information given to them during confession or otherwise covered by confidentiality arising out of their position, state officials in respect of confidential information in connection with their office, unless an exemption is made, and mediators in respect of information entrusted to or otherwise obtained by them during the course of mediation.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

The court must ask witnesses appropriate questions about the facts to be proved by their testimony and about the circumstances under which they obtained their knowledge. The parties may participate in the examination of witnesses and, with the court’s consent, ask them questions to clarify or complete their testimony. The judge may reject inappropriate questions. Witness testimonies have to be recorded as to their essential content or, if necessary, recorded verbatim. Video and audio recorders and the data stored on them are generally deemed to be objects of inspection. Inspection evidence is the result of the direct sensory perception of characteristics or conditions of things by the court. However, on the principle that evidence should be taken directly, such evidence is only admissible where direct evidence (e.g. a witness) is not available. Examination of witnesses using video technology is possible in principle and should be used in lieu of examination when executing requests for judicial assistance for reasons of economy of process. All courts have been equipped with video-conferencing facilities since 2011.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

If a party infringes a contractual obligation, a provision of private law or the accepted principles of morality in order to obtain evidence, the court may admit and assess the evidence, but the party concerned will nevertheless be liable to pay compensation. If, in order to obtain evidence, the party infringes a provision of criminal law protecting the core basic rights and freedoms laid down by the Constitution (e.g. physical injury, kidnapping, or coercion of a witness to give testimony), the evidence so obtained is inadmissible and may not be accepted by the court. If there is doubt as to whether a criminal act has been committed, the court may suspend civil proceedings until a final judgment has been given in the criminal proceedings. If the criminal act committed to obtain evidence does not infringe the core basic rights and freedoms laid down by the Constitution, the party in question is deemed criminally liable, but the evidence is not inadmissible. Only evidence obtained illegally which has adversely affected the court’s duty to establish the truth and thus undermines the guarantee that the court will deliver a true and accurate judgment is inadmissible.

3.2 As a party to the case, will my own statement count as evidence?

The examination of the parties also constitutes evidence. Like witnesses, the parties also have a duty to attend, give testimony and take oath. However, parties cannot be forced to appear or testify in court. Any unjustified failure by a party to attend the proceedings or to testify in court must be judged by the court with due regard for all the circumstances. Only in paternity or divorce proceedings is it possible to use force to ensure that the parties appear before the court. Failure by a party to tell the truth (unlike with witnesses), is not a criminal offence unless a false statement is given under oath. The examination of the parties may be ordered by judges on their own motion.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 04/07/2016

Taking of evidence - Portugal

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The rule regarding the burden of proof is that the party on which the burden falls has to demonstrate the truth of the facts alleged so that the validity of the argument presented in court can be assessed.

As regards the distribution of the burden of proof, i.e. which party should bear the burden of proof, Article 342 of the Civil Code lays down the fundamental rule. Under that article, the person who invokes a right must prove the facts constituting the right, and the party against whom the right is invoked must demonstrate facts impeding, modifying or terminating the right. Impeding facts are those which act as obstacles to the effective establishment of the right. Modifying facts are those which alter the scope of the right that has been established. Terminating facts are those which, after the right has been established as valid, cause it to end. In the event of doubt, the facts must be considered as constitutive.

In the case of negative assessment proceedings, where one party is not seeking a judgment against the other party but merely wishes the court to establish the non-existence of a right or fact, it is up to the defendant (the party against whom the case has been brought) to prove the elements constituting the right which is being claimed.

In court actions which must be brought within a certain time limit following the date on which the plaintiff (the party initiating the action) has become aware of a certain fact, it is up to the defendant to prove that the time limit has already expired, unless there is another solution especially established by law.

If the right invoked by the plaintiff is subject to a suspensive condition (an uncertain event in the future on whose occurrence the parties have made the effects of the legal transaction dependent) or to an initial deadline (moment in time after which the right may arise), it is up to the applicant to prove that the condition has been met or that the initial deadline has been passed. If the right is subject to a termination condition (an uncertain event in the future on whose occurrence the parties have made the cessation of the effects of the legal transaction dependent) or to a final deadline (moment in time after which the right ends), it is up to the defendant to prove that the condition has been met or that the final deadline has passed.

The above rules are reversed where there is a legal presumption (consequence or inference which the law deduces from a known fact to establish an unknown one), exemption or release from the burden of proof or a valid agreement to that effect, and, in general, wherever the law so determines. The burden of proof is also reversed if the opposing party has intentionally made it impossible for the proof to be presented by the party which should produce it.

An agreement to reverse the burden of proof is invalid where an inalienable right is involved (one which a party cannot waive merely by making a statement that it wishes to do so) or where it might make it excessively difficult for one of the parties to exercise the right. Similarly, an agreement to exclude any legal means of proof or to allow a means of proof other than that provided for by law is also invalid. If the decisions arising from the law in relation to the proof are based on reasons of public policy, such agreements are invalid under all circumstances.

Where evidence is presented by the party on which the burden of demonstrating a particular fact falls, the opposing party can present counter-evidence with a view to raising doubts. If there is sufficient doubt, then the decision must go against the party which had the obligation to prove the fact in question.

Full legal evidence may only be countered by evidence proving that the fact that gave rise to it is not true, without prejudice to other restrictions specifically determined by law.

Anyone invoking customary, local or foreign law is responsible for proving its existence and content, but the court should strive ex officio to obtain the respective knowledge. The court is also responsible for ex officio knowledge whenever it has to decide based on customary, local or foreign law and none of the parties has invoked it, or the opposing party has acknowledged its existence and content or has not lodged any opposition. If it is unable to determine the contents of the applicable law, the court will use the rules of Portuguese common law.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Yes, there are such rules.

Proof is not required for well-known facts, in other words those of public knowledge.

Proof is also not required for facts which the court is aware of by virtue of the exercise of its functions; when the court calls upon these facts, documentary proof of the facts must be attached to the case.

Similarly, a party which has a legal presumption (defined above) in its favour does not need to prove the presumed fact.

Legal presumptions may be rebutted by the presentation of counter-proof, except in cases where the law does not allow this.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The court freely assesses the evidence and the judge makes his decision on the basis of his prudent belief regarding each fact.

Free assessment of evidence does not cover facts for which the law requires special formalities to prove them, or those that can only be proven by documents or are fully proven, either by documents or by agreement or confession of the parties.

The court must consider all the evidence, whether or not it has come from the party who should produce it, without prejudice to provisions that declare evidence of a fact to be irrelevant if it is not produced by a certain interested party.

Any doubt about the reality of a fact or the burden of proof is resolved against the party which stands to benefit from the fact.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

The law allows for the task of obtaining evidence to be carried out on the initiative of the judge.

It is the judge’s responsibility to carry out or order, including ex officio, all the actions necessary to determine the truth and the true nature of the dispute with regard to the facts that should be known.

The judge may, at any stage in the proceedings, call for the parties to appear in person to give evidence regarding the facts which are of relevance for the decision in question.

It is the responsibility of the court, on its own initiative or at the request of either of the parties, to request information, technical opinions, plans, photographs, drawings, objects or other documents necessary for clarifying the truth. Such requests can be made to official bodies, the parties disputing the case or third parties.

The court, whenever it considers it appropriate to do so, can, on its own initiative or at the request of either of the parties, investigate things or people. This must be done in such a way as to safeguard the intimacy of private and family life and human dignity and should be aimed at clarifying any fact which is relevant for the decision in question. The court can carry out an on-the-spot visit or can order a reconstruction of events to be undertaken, if it believes this is necessary.

When, in the course of a court case, there are reasons to presume that a person who has not been called as a witness has knowledge of facts which are important for making a correct decision in the case, the judge should order that that person be summoned to give evidence in court.

The judge may, ex officio, order evidence to be given by experts.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

Evidence is generally offered with pleadings. At the end of the application, the applicant must submit the list of witnesses and request other forms of evidence; if the defendant contests, they must submit the list of witnesses with their response and request other forms of evidence. The applicant is allowed to change their original application to obtain evidence, and may do so in their response, where applicable, or within 10 days of being notified of the defence. In the event that the defendant submits a counterclaim and the applicant responds, the defendant is allowed to amend their original application to obtain evidence within 10 days of being notified of the response.

As a general rule, evidence is taken at the final hearing. On an exceptional basis evidence can be given at an earlier stage. Evidence can be the testimony of people, expert evidence or evidence obtained through judicial examination. For early presentation of such proof to be made, there must be a well-founded fear that it may be impossible or very difficult to collect testimony from certain people during the actual court case or to verify certain facts by expertise or inspection.

After applications to obtain evidence have been admitted during the preliminary hearing, where they may be amended, or if this does not apply to the competent order, the final hearing is called after the legal representatives have been heard.

The list of witnesses may also be added or amended up to 20 days before the date on which the final hearing is held and the other party is notified to make use of this possibility, if they so wish, within five days.

Except in cases where circumstances justify the judge changing the order of legal events, at the final hearing the taking of evidence starts with the parties making their statements.

Then, should the evidence include films or sound recordings, these are exhibited.

This may then be followed by verbal clarifications by experts who have been called to appear in court at the request of either of the parties or the court itself, followed by an examination of the witnesses.

After the evidence has been taken, the facts of the matter are debated. In these debates the lawyers establish the conclusions, both de facto and de jure, that they have drawn from the evidence produced, with each lawyer able to respond once.

On conclusion of the final hearing, the case is sent to the judge for the handing down of a judgment within 30 days. If the court believes that it is not sufficiently informed, it can return to the courtroom to hear the people it wishes to and to order the necessary steps to be taken to clarify the matter in doubt.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The application to obtain evidence can be rejected if it is presented outside the time limit laid down by law for this purpose.

An application to obtain evidence may be rejected in whole or in part even if it is submitted in a timely manner, in the following circumstances: the number of witnesses for a certain type of procedure is exceeded (those which exceed the limit must be rejected); the judge feels an application for expert evidence to be irrelevant or dilatory; someone who could testify as a party is enlisted as a witness; statements made by a party involving dishonest or criminal facts of which the party in question is accused are requested; or the party is requested to testify regarding facts that do not involve a confession. Other evidence which is not acceptable is evidence involving the violation of State or professional secrecy or the secrecy to be observed by public servants, which may, however, be lifted in accordance with the legally established terms.

Thereafter, during the final hearing and after the witness has sworn the oath, the judge will carry out a preliminary examination, which seeks to identify the witness and find out whether they are a relative, friend or enemy of any of the parties, whether they are in any kind of dependent relationship with the said parties and whether they have any interest, directly or indirectly, in the case. If the answers prove that the declaring party is unable to act as a witness or they are not the person who was put forward, the judge will not admit them to testify. Only those who do not suffer from psychiatric disorders and have the physical and mental aptitude to testify regarding the facts to be proven are able to testify as witnesses, and the judge is responsible for assessing the natural ability of people enlisted as witnesses in order to assess the admissibility and credibility of their evidence.

Testimonial evidence is not admitted if the business declaration, by law or as stipulated by the parties, must be in writing or must be evidenced in writing. Testimonial evidence is also not admitted when the event has been fully proven by documents or by other means with full probative force. Testimonial evidence is inadmissible if it is based on any agreements that are contrary or additional to the content of authentic or private documents with full probative force, whether the agreements took place prior to the creation of the document, at the same time, or subsequently.

2.4 What different means of proof are there?

The following means of proof exist:

a)      Documents;

b)      Proof by confession;

c)      The statements of the parties in the case;

d)     Expert reports;

e)      Judicial inspection;

f)       The testimony of witnesses;

g)      Proof via presentation of objects;

h)      Presumptions.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Differences in the demonstrative effectiveness of means of proof do not depend on whether it is oral or written.

The court is only bound by evidence with legally pre-determined probative force, and under the terms and limits specified: proof by authentic or private documents, whose authenticity is established by recognised means (cf. Articles 362 to 387 of the Civil Code), confession (cf. Articles 352 to 360 of the Civil Code) and legal presumptions (Articles 349 to 350 of the Civil Code).

Assessment of the remaining evidence is carried out in accordance with the principle of free assessment of evidence, without being subject to any rules apart from the rules of experience, i.e, the general and abstract judgments of causal succession. Evidence will be considered in accordance with the conviction that the judge has formed about the facts, taking these rules into account.

2.6 Are certain methods of proof stronger than others?

The law does indeed attribute different degrees of demonstrative force to the various means of proof.

The free assessment of evidence is set aside and some means of proof take precedence over others where the law attributes a specific degree of importance to a particular means of proof or where it demands some special formality for the existence or proof of a legal fact. In cases of negative legal proof the law forbids the use of certain types of evidence by the judge in reaching a decision.

With regard to the taking of evidence through the collection of witness testimony, verbal hearing of experts (as a general rule, experts are only heard at the final hearing if it is necessary to provide verbal clarifications, since the results of their investigations are given in written reports), judicial inspections, investigation reports and documents not defined by law as having any special significance, the court freely assesses all such evidence.

The demonstrative effectiveness of witness testimony is freely considered by the judge. However, witness testimony cannot be used to substitute a document required under the law or to go against or add to the content of certain documents.

The strength of the evidence given in the replies of experts is assessed freely by the court and the same applies as regards the results of judicial investigations.

Authentic documents (that is, those set down in writing by a competent public authority or official in the exercise of their powers) are considered to fully prove the facts they refer to as having been carried out by such agents together with the facts which are attested to in them on the basis of the understanding of the documenting entity (that is, such documents represent a demonstration of proof which can only be rebutted by proof to the contrary). Private documents, in which the signatures or handwriting, or just the signature, are recognised or not contested by the party against whom the document is submitted, or when, in spite of the signature and handwriting having been attributed to them, they declare not to know if they belong to them, or they are deemed to be authentic, both legally and judicially, and private documents, with signatures or handwriting that have been authenticated by a notary public can be used as proof of declarations attributed to their writer, but this does not prevent arguments or proof of falsity being lodged with regard to such documents. The facts included in the declaration are considered as proven in so far as they are contrary to the interests of the declaring party. The declaration must, however, be considered in its entirety. Private documents authenticated under notarial law have the force of proof of authentic documents, but do not replace them when the law requires such documents for the validity of the act.

A written judicial confession has full probative force against the confessor. A non-judicial confession, in the form of an authentic or private document, is considered as proven under the terms applicable to these documents and, if it was made to the other party or their representative, has full probative force.

A non-judicial confession that does not take the form of a document may not be proven by witnesses in cases where testimonial evidence is not admitted; when this is admitted, the court freely considers its probative force.

Non-written judicial confessions and non-judicial confessions made to a third party or contained in a will are freely considered by the court.

A confession is not evidence against the confessor: a) if it is declared insufficient by law or relies on facts whose recognition or research is prohibited by law; b) if it relies on facts relating to inalienable rights; c) if the confessed fact is impossible or clearly non-existent.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Yes, this is the case in Portuguese law.

When the law demands, as a form of business declaration, a document with a certain formality, such a document cannot be substituted by another means of proof or by another document except if this has greater probative force.

When the law demands any special formality for the existence or proof of a legal fact, this cannot be dispensed with.

2.8 Are witnesses obliged by law to testify?

All persons, whether or not they are parties in the case, are required to cooperate in the discovery of the truth. They must answer what they are asked, submit to the necessary investigations, supply what they are requested to, and carry out acts that are decided on.

2.9 In which cases can they refuse to give evidence?

Witnesses may refuse to give evidence, except in proceedings aimed at verifying a child's birth or death:

  • Relatives in the ascending line in cases involving descendents, and adoptive parents in cases involving the adopted children, and vice-versa;
  • A father-in-law or mother-in-law in cases involving their son-in-law or daughter-in-law, and vice-versa;
  • Any spouse or ex-spouse in cases where one of the parties is the other spouse or ex-spouse;
  • Whoever lives or has lived in a common-law marriage in similar conditions to those of spouses with either of the parties in the case.

It is the responsibility of the judge to advise the people referred to above that they can refuse to testify.

Witnesses bound by professional secrecy, the secrecy incumbent on public employees and State secrecy can legitimately refuse to testify in relation to facts covered by such secrecy.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

In accordance with the previous answer, people who refuse to testify are not sanctioned or required to cooperate with the court, as this is their legal right.

2.11 Are there persons from whom evidence cannot be obtained?

Yes, there are persons from whom evidence cannot be obtained.

These are people who are unable to testify due to psychiatric disorders and those who are not physically or mentally fit to testify on the facts to be proven.

It is the responsibility of the judge to assess the competence of the people summoned to testify as witnesses.

People who may give testimony as parties in the case are forbidden to testify as witnesses.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Witnesses testify at the final hearing in person or by videoconferencing, except in the following circumstances:

  • When evidence is taken at an earlier stage (this can be done where there is a well- founded fear that it may be impossible or very difficult to collect testimony from a certain person);
  • Evidence is taken by letters rogatory sent to a Portuguese consulate;
  • Evidence is taken in a person’s residence or service headquarters (prerogative granted to the President of the Republic and foreign diplomatic agents under conditions of reciprocity);
  • It is impossible for them to appear in court;
  • The prerogative to testify in writing is used.

The witness must testify in an accurate manner, indicating the reason and circumstances which justify his knowledge of the facts; as far as possible, the reason invoked for the knowledge will be set out in detail and will be well-founded.

The questioning is done by the lawyer of the party which called the witness. The lawyer of the other party can, with regard to the facts covered in the testimony, put questions to the witness to complete or clarify the testimony.

The judge must prevent the lawyers from being impolite to the witnesses and from putting questions or considerations which are irrelevant, suggestive, deceitful or offensive.

Questioning and cross-questioning are carried out by representatives of the parties, without prejudice to the information requested by the judge or the fact the judge may pose questions which they believe to be appropriate for determining the truth.

The judge will carry out the questioning himself where this is necessary to ensure the witness’s composure or to put an end to inappropriate cross-questioning.

Before the witness answers the questions put to him he can consult the case, demand that he be shown certain documents forming part of the case, or present documents aimed at corroborating his testimony; only documents which the respective party could not have offered are received and placed on file.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Evidence obtained illegally cannot be considered by the court.

3.2 As a party to the case, will my own statement count as evidence?

Yes, in addition to the testimony of the party referred to above, Portuguese procedural law also gives parties the option of providing statements.

Indeed, the parties may, until the start of oral pleadings in the first instance, request permission to provide statements regarding facts in which they have been personally involved or of which they have direct knowledge.

The court freely considers the statements of the parties, except where they involve a confession.

In this regard, please also see the answer to question 2.6

Related links

Applicable legislation

Link opens in new windowCivil Code

Link opens in new windowCode of Civil Procedure

Related links

Link opens in new windowMinistry of Justice

Link opens in new windowAttorney General’s Office

Link opens in new windowOfficial Journal

Link opens in new windowLegal Document Database


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 21/04/2017

Taking of evidence - Slovenia

Please note that the original language version of this page Slovenian has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS


1 The burden of proof

The rules regarding the taking and presentation of evidence and the methods of taking evidence in civil proceedings are regulated by the Civil Procedure Act (Zakon o pravdnem postopku, ZPP).

1.1 What are the rules concerning the burden of proof?

The general rule is that the parties must state all the facts underlying their claims and objections, and present evidence proving those facts (Articles 7 and 212 of the ZPP).

Claimants must prove the facts which are at the origin of their claims, while defendants must prove the facts underlying their objections. Substantive law tells us which of the parties is required to assert and prove a given fact. The consequences of a fact not being proven fall on that party which, according to the norms of substantive law, must assert and also prove that fact (Articles 7 and 215 of the ZPP).

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

The evidence-taking procedure covers the facts on which the claims and objections are based, scientific and professional rules, and rules based on experience. The legal norms are not proved, since the rule applied to them is that the court must be acquainted with them ex officio (iura novit curia).

No proof is required for facts that are acknowledged by a party during proceedings before the court. A court may order acknowledged facts to be proved if it believes that a party has acknowledged them in order to assert a claim which it may not assert (third paragraph of Article 3 of the ZPP).

Facts which a party does not deny or denies without stating the reasons for denying them, shall be deemed to be acknowledged, unless the purpose of denial of these facts stems from other statements of the party. A party may also prevent the effect of this presumption of acknowledgement by stating that they do not recognise the facts; however, this only applies to facts that do not relate to the conduct of this party or its perception.

No proof is required for facts that are acknowledged and generally known (first and sixth paragraphs of Article 214 of the ZPP).

The court takes an acknowledged fact without checking its veracity (first paragraph of Article 214 of the ZPP), unless it considers that the party has acknowledged it with the intention of asserting a claim which it is not permitted to assert (third paragraph of Article 3 of the ZPP).

Facts which the law presumes do not require proof; however, it can be proved that these facts do not exist, unless the law determines otherwise (fifth paragraph of Article 214 of the ZPP).

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

To take a decision on the merits of a claimant's claim, a high degree of truth (material proof) is required, i.e. the court must be convinced of the facts that are relevant in law.

On some occasions a demonstration of probability is sufficient to issue a decision, in particular for the issuing of certain interim procedural decisions which do not bring the proceedings to an end and by which the court settles interim procedural questions. For the judge to apply a specific procedural rule, the legally relevant facts must be shown to be probable. However, it is not necessary for the judge to be convinced of their existence. The ZPP does not define those facts which can be shown to be probable in order that a certain norm be taken into account.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

In accordance with the adversarial principle in place, it is mainly the parties who apply for evidence to be taken.

The court may also take evidence ex officio (second paragraph of Article 7 of the ZPP) if it considers that the parties intend to make inadmissible use of their claims (third paragraph of Article 3 of the ZPP).

The court takes evidence ex officio in parental disputes, where it is not bound by the claim and even though a claim has not been raised; it may also take evidence even though neither of the parties have stated evidence and if this is required in order to protect children’s interests (Article 408 of the ZPP).

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

The court decides which evidence should be taken for the purpose of establishing the decisive facts (second paragraph of Article 213 and Article 287 of the ZPP). It adopts a decision on the evidence by which it accepts or rejects the parties’ applications, and may also order the taking of certain evidence ex officio.

If a party’s application concerning evidence is approved by court decision, this is then implemented and evidence actually taken. The court is not bound by its decision on evidence. It may change it in the course of the proceedings and take evidence regarding which it rejected a previous application, and may also take new evidence (fourth paragraph of Article 287 of the ZPP).

Evidence is generally taken at the main hearing before a judge, who issues the final decision (first paragraph of Article 217 of the ZPP). If there are valid reasons, evidence may be taken before a specified judge upon request (first paragraph of Article 217 of the ZPP). In exceptional cases, it is also possible to take evidence after the main hearing is completed, when the judges’ panel decides that the completed main hearing is to be reopened. This occurs, if required, in order to supplement proceedings or to clarify specific important issues (Article 292 of the ZPP).

2.3 In which cases can the court reject an application by a party to obtain evidence?

The ZPP specifically provides that the taking of evidence may be rejected only where the evidence is irrelevant to the decision (Article 287 of the ZPP); i.e. the evidence does not serve to establish the legally relevant facts. However, the ZPP contains no specific provisions regarding the possibility of rejecting inadmissible evidence, or evidence which cannot be obtained cost-effectively or which cannot feasibly be obtained.

A party must, no later than by the first main hearing, state all facts necessary to support their motions, adduce the evidence required to establish the truth of their statements, and state their position with regard to the statements and the evidence adduced by the opposing party. This means that the court does not take into account evidence which a party is too late in proposing. The party is generally precluded by such a motion (Article 286 of the ZPP). The sole exception involves cases where a party can prove that they were prevented from presenting evidence at the first hearing by reasons beyond their control (fourth paragraph of Article 286 of the ZPP).

Regarding inadmissible evidence and evidence that cannot feasibly be obtained, it is important to comply with the third paragraph of Article 3 of the ZPP, which states that the court will not recognise the motions of parties which are contrary to binding regulations or contrary to moral rules.

2.4 What different means of proof are there?

The ZPP recognises inspections, documents, the hearing of witnesses, the hearing of expert witnesses and the hearing of parties.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Witnesses: Anyone summoned to be a witness must attend and, unless otherwise provided by law, must testify (first paragraph of Article 229 of the ZPP). Witnesses are heard at the proposal of a party, which must state what the witness is to testify on and give his or her personal details (Article 236 of the ZPP). Witnesses are called to a hearing by a special summons; this summons must advise them of their obligation to testify, the consequences of an unjustified failure to attend, and their right to a reimbursement of their costs (Article 237 of the ZPP).

Witnesses are heard at the main hearing. Witnesses who, because of age, illness or serious physical disability, cannot comply with the summons may be heard at their place of residence (second paragraph of Article 237 of the ZPP). Each witness is heard individually and not in the presence of other witnesses who are to testify later (first paragraph of Article 238 of the ZPP). The court advises witnesses of their obligation to speak the truth and not to omit anything; it also warns them of the consequences of giving false testimony. The witness first states what he or she knows about the case; the judge presiding over the chamber or the members of the chamber and the parties and their representatives and proxies then put questions in order to test the witness’s statements or to supplement or clarify them. If witnesses give statements that are inconsistent, they may be confronted with the fact (third paragraph of Article 239 of the ZPP). The ZPP no longer recognises witnesses’ oaths.

The ZPP makes no distinction between the procedure for hearing ordinary and ‘expert’ witnesses, and lays down no special procedural provisions in that regard. There is no difference between the procedures for hearing witnesses and expert witnesses.

Documents: Although the ZPP does not rank the different means of proof, documents are deemed to be the most reliable. These can be divided into public and private documents. Public documents are those issued in a prescribed form by a state body acting within its sphere of competence or documents issued in such a form by a self-governing local community, a company or other organisation or an individual in the exercise of a public authority entrusted to them by law (first paragraph of Article 224 of the ZPP). Private documents are all documents that are not public. In a private document, a signature may be authenticated by an authorised state body or a legal or natural person exercising a public authority (e.g. a notary public). Such authenticated clauses in private documents are of public significance, and that part of the document may also be regarded as a public document. The evidential value of public documents is defined separately in the ZPP. A public document proves the veracity of the facts confirmed or specified therein (first paragraph of Article 224 of the ZPP). While the ZPP proceeds from the assumption that the contents of a public document are true, it is admissible to prove that facts have been inaccurately recorded in a public document or that a public document has been incorrectly drawn up (fourth paragraph of Article 224 of the ZPP). That is the only rule of evidence in Slovenian civil procedure.

Foreign public documents authenticated under the relevant regulations have the same evidential value as Slovenian documents, provided that reciprocity arrangements are applied, unless an international agreement determines otherwise (Article 225 of the ZPP).

The ZPP also lays down rules on the delivery of documents (the duty to provide documents), which depend on whether the document is with the party referring to it, with the opposing party, with a state body or organisation exercising a public authority, or with a third person (natural or legal person).

Expert witnesses: The court takes evidence from an expert witness when technical knowledge is required to establish or clarify a given fact and such knowledge is not available to the court (Article 243 of the ZPP). The civil court appoints an expert witness by special decision, where it hears the parties’ views on the matter prior to the appointment. An expert witness may also be appointed by the judge presiding over the chamber or by a specially requested judge, if they are authorised to take such evidence (Article 244 ZPP). Expert witnesses are generally appointed from a special list of court-appointed witnesses; the task may also be entrusted to a specialised institution. Only natural persons may act as expert witnesses. Expert witnesses are bound to accept their duties and give their findings and opinion (first paragraph of Article 246 of the ZPP). The court may impose a fine on an expert witness who fails to attend a hearing despite having been summoned in the proper manner; it may also fine an expert witness who declines to carry out his or her tasks without giving a justified reason (first paragraph of Article 248 of the ZPP). Expert witnesses may be released from their duty by the court, at their request, only for the reasons which they may invoke to refuse to testify or answer an individual question. The court may also release expert witnesses from their duty, at their request, for other justified reasons (e.g. excessive workload). An exemption for that reason may also be requested by an authorised employee of the body or organisation in which the expert witness works (second and third paragraph of Article 246 of the ZPP). An expert witness may also be disqualified in the same way as a judge; the only exception to this is where someone who has already previously been heard as a witness may serve as an expert witness (first paragraph of Article 247 of the ZPP).

The work of an expert witness comprises findings and an opinion. The court also decides whether an expert witness is to give their findings and opinions only orally at the hearing or whether they must also submit them in writing before the hearing. The court also sets the deadline by which an expert witness is obliged to give his or her findings and opinion. If more than one expert witness is appointed, they may give their findings and opinions jointly, if they agree on them. If they do not agree, each expert witness gives his or her findings separately (Article 254 of the ZPP). If fundamental differences emerge between the information provided by expert witnesses or if the findings of one or more expert witness are unclear, incomplete or self-contradictory, or contradict the circumstances that have been investigated, and such anomalies are not rectified by a fresh hearing of the expert witnesses, evidence is taken again from the same or other expert witnesses (second paragraph of Article 254 ZPP). However, if there are contradictions in the opinion of one or more expert witnesses or their opinion contains anomalies or if reasonable doubt arises regarding the correctness of the opinion provided, the opinions of other expert witnesses are requested (third paragraph of Article 254 of the ZPP). Expert witnesses have the right to a reimbursement of their costs and the right to remuneration for their work (first paragraph of Article 249 of the ZPP).

2.6 Are certain methods of proof stronger than others?

The principle applied in the evaluation of evidence is that of the free assessment of evidence. The court, acting according to its own convictions, decides which facts are deemed to have been proved, based on a thorough and careful appraisal of each item of evidence separately and of all the evidence together, and on the success of the proceedings as a whole (Article 8 of the ZPP). Slovenian civil procedure does not therefore recognise ‘rules of evidence’, whereby the legislator lays down in advance in abstract fashion the value of specific types of evidence. The only exception to this is the rule on the evaluation of public documents (see point 2.5).

In practice, however, the rule applied is that documentary evidence, for example, is more reliable (but not stronger) than other proof, such as the testimony of witnesses or parties.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

The ZPP contains no provisions on whether certain items or means of proof are obligatory in order to establish the existence of certain facts.

2.8 Are witnesses obliged by law to testify?

Yes. Anyone summoned to be a witness must attend and, save where otherwise provided by law, must testify (first paragraph of Article 229 of the ZPP).

2.9 In which cases can they refuse to give evidence?

A person may not be heard as a witness if their testimony would violate the obligation to preserve an official or military secret, unless the competent authority releases them from that obligation (Article 230 of the ZPP).

Witnesses may refuse to testify (Article 231 of the ZPP):

  • on matters which a party has confided in them as its authorised representative;
  • on matters which the party or another person has confessed to them as a religious confessor;
  • on facts which they have discovered as a lawyer or doctor or in exercising any other profession or any other activity where they are bound by an obligation to keep secret any facts they discover in exercising that profession or activity.

Witnesses may refuse to answer individual questions if they have good reason, particularly if, by answering, they would bring serious shame, considerable financial damage or criminal prosecution on themselves or lineal blood relatives up to any degree, or on collateral blood relatives up to the third degree, or if they would bring serious shame, considerable financial damage or criminal prosecution on their spouse or a relative by marriage up to and including the second degree (even where the marriage has already been terminated), or to their guardian or charge, or to their adopted parent or adopted child (first paragraph of Article 233 of the ZPP).

However, the risk of causing financial damage may not be used by a witness as a reason for refusing to testify on legal transactions at which they were present as a summoned witness, on actions which they performed, in relation to a dispute, as a legal predecessor or representative of any of the parties, on facts relating to property relations linked to family ties or marriage, on facts relating to birth, marriage or death, or wherever, pursuant to special regulations, they are obliged to submit an application or give a statement (Article 234 of the ZPP). A witness may also not refuse to testify on the grounds of protection of a business secret, if the disclosure of certain facts is necessary in order to benefit the public or another person, provided that such benefit outweighs the damage caused by disclosure of the secret (Article 232 of the ZPP).

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Yes. If a witness who has been summoned in the proper manner fails to attend and their absence is unjustified, or if they leave without permission the place where they were to have been heard, the court may order them to be brought by force, at their expense, and may also impose a fine of up to EUR 1 300). The court may also impose such a fine on a witness who attends but who then, after having been warned of the consequences, declines to testify or to answer specific questions for reasons that the court deems to be unjustified. In the latter case the court may, if the witness is still unwilling to testify, imprison the witness until such time as they are willing to testify, or until they no longer need to be heard, but for no longer than one month (first and second paragraphs of Article 241 of the ZPP).

2.11 Are there persons from whom evidence cannot be obtained?

A witness may be any person who is capable of giving information on the facts to be proved (second paragraph of Article 229 of the ZPP). Eligibility to be a witness does not depend on legal capacity. A child or a person who has been declared partly or wholly legally incapable can be a witness if they are capable of giving information on the legally relevant facts. The question of whether or not a witness is capable of testifying is assessed by the court on a case‑by-case basis.

A party or a party’s legal representative may not be a witness; however, an ordinary representative (pooblaščenec) or an intervenor (stranski intervenient) may be a witness.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

With regard to the hearing of witnesses, see the reply above.

Videoconferencing is regulated by Article 114a of the ZPP, which states that a court may, with the consent of the parties, permit the parties and their representatives to be at another location during the hearing and conduct procedural acts at that location if sound and video transmission is provided from the location at which the hearing is being conducted to the location or locations at which the parties and/or representatives are present. The same conditions apply to the taking of evidence by hearing parties, witnesses and expert witnesses.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

Generally speaking, evidence obtained illegally (e.g. through unlawful phone tapping) may not be used in civil proceedings. However, case law does exceptionally allow the use of such evidence if there are substantiated reasons for doing so or if the taking of evidence would have a special importance for the implementation of a constitutionally protected right. In this case, in addition to the fact that some evidence might have been obtained illegally, the decisive role is played by the fact of whether the evidence provided in civil proceedings would lead to a re-violation of human rights.

Regarding inadmissible evidence and evidence that cannot feasibly be obtained, the third paragraph of Article 3 of the ZPP states that the court will not recognise the motions of parties which are contrary to binding regulations or contrary to moral rules.

3.2 As a party to the case, will my own statement count as evidence?

If the statement forms part of an action or an application of some kind, it will not count as evidence, but will have the status of an actual assertion by the party, for which the party must also present appropriate evidence. If the statement is contained in a document submitted as evidence of a party’s assertions, that statement will have the status of a document.

A statement given by a party during their hearing also counts as evidence, as the ZPP also recognises the hearing of parties as evidence (Article 257 of the ZPP).

Related links

Link opens in new windowhttp://www.pisrs.si/Pis.web/


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 09/03/2015

Taking of evidence - Finland

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The claimant must prove the facts that are necessary to establish the claim, while the defendant bears the burden of proving defences to the claim. A party who fails to present evidence runs the risk that the facts that his or her claims are found not proven.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Admitted facts do not need to be proven. In addition, generally acknowledged facts, or facts that are ex officio known to the court, need not be proven. Counter-evidence may naturally be presented.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

In this respect the law merely contains a provision whereby the court must, after having carefully considered all the facts which have arisen, decide what is to be regarded as the truth in the case. Finland applies the principle of “free evaluation of evidence”, and so it is a matter of presenting adequate evidence to the court.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

In practice the interested parties must themselves obtain the evidence on which they wish to rely. The law also permits the court to decide to obtain items of evidence on its own initiative. However, the court cannot order a new witness to be examined or a document to be presented on its own initiative and against the will of both the interested parties if the case in question is one which is amenable to out-of-court settlement.

In certain cases, such as paternity cases, it is also the duty of the court to ensure that all necessary evidence is obtained.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

The taking of evidence takes place at the main hearing.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court can deny such an application if, for example, the evidence is irrelevant or the case has already been proven in this respect. An application to obtain evidence can also be rejected if it is made at too late a stage.

2.4 What different means of proof are there?

Different means of proof include the hearing of the interested parties, witnesses and experts, the presentation of written evidence and expert statements, and examination.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

There is no difference between the evaluation of oral witness or expert testimony and that of a written expert statement. However, courts do not accept written statements from witnesses.

2.6 Are certain methods of proof stronger than others?

No. The court has free discretion when evaluating evidence.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

No.

2.8 Are witnesses obliged by law to testify?

As a rule, a witness cannot refuse to give evidence.

2.9 In which cases can they refuse to give evidence?

The spouse, fiancé(e) and direct ascending or descending relatives of an interested party as well as an interested party’s siblings and their spouses or the adoptive parents or adoptive children of an interested party have the right to refuse to give evidence. In addition, the law includes various other situations where a witness has the right or the obligation to refuse to give evidence.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A witness who without lawful cause refuses to give evidence can be obliged under the threat of a fine to fulfil his or her obligation. If the witness still refuses to give evidence, the court can order him or her to be detained until he or she consents to giving evidence.

2.11 Are there persons from whom evidence cannot be obtained?

It is up to the discretion of the court whether (for example) a person under 15 years of age or a mentally disturbed person can be heard as a witness.

Certain groups of persons, such as doctors and lawyers, cannot give evidence in matters relating to their position of trust.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

As a general rule, the party who calls a witness examines that witness first. The other party then has a right to cross-examine the witness. Following cross-examination, the court and the interested parties can put further questions to the witness.

A witness can be heard using videoconferencing or other suitable telecommunications technology that provides an audiovisual link between those taking part in the session, if the court considers this to be appropriate. This procedure can be used, for example, if a witness has been prevented from attending court in person or if his or her attendance would result in unreasonable costs, or if the witness is under 15 years of age. In certain situations a witness can also be examined over the telephone.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The law does not contain specific instructions for such circumstances. The court must, using its discretion, decide what significance such evidence will have.

3.2 As a party to the case, will my own statement count as evidence?

Yes. Interested parties can be heard freely for the purpose of presenting evidence, and in a civil case they can be heard under oath regarding facts that are of special significance to resolving the case. A statement given by an interested party in evidence will be evaluated on the same criteria as a statement given by a witness.

Links

Link opens in new windowTaking of evidence (Ministry of Justice, Finland)

Brochure: Testifying in court (Ministry of Justice, Finland)


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 26/09/2017

Taking of evidence - Sweden

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

Swedish law is based on the principles of the mode of proof and admissibility of evidence. Following a detailed assessment of everything that has emerged during the case, the court must decide what has been proved. It is the court that decides what value is to be attached to the evidence.

Certain rules on the admissibility of evidence have been established in case-law, including in relation to where the burden of proof lies. A highly simplified main rule, to which there are many exceptions, is that anyone who asserts something must also prove it. If one party has found it easier to secure proof of a certain fact, the burden of proof is often placed on him or her. If a party has found it difficult to produce evidence of a certain circumstance, this may also be of significance for establishing where the burden of proof lies. If, for example, someone demands payment for a debt, he or she must prove that he or she has a claim against the opposite party. If the opposite party pleads that payment has already been made, then it is he or she who has the burden of proving that this is the case. In cases of liability for damages, it is normally the party who claims that he or she has suffered damages who has the burden of proof. It may also happen that the burden of proof for a certain fact may be inverted.

If the evidence produced is insufficiently solid, the court cannot use the circumstance in question as the basis for its examination. If it is a case of estimating the value of damage that has occurred there is an exception that means that the court may, if it is not possible or very difficult to produce evidence as to the amount of damage, estimate the value of the damage at a reasonable amount.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Please see the response to question 1.1.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The requirements that are laid down for the weight of evidence depend on what type of case is concerned. In civil cases the normal requirement is that the fact in question is to be confirmed. In certain civil cases a lower evidence requirement may apply. An example that could be mentioned is that of cases of consumer insurance policies, where it is considered sufficient that it appears more probable than not that the event insured against has occurred.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

The parties themselves are responsible for the evidence. In indispositive cases, i.e. cases relating to matters concerning which the parties cannot reach conciliation, there is an opportunity for the court to introduce evidence to the case without this being requested by either party. In cases relating to custody or visiting rights, therefore, the court may decide that the investigation must be supplemented by additional evidence. In civil cases where the parties can reach conciliation, which are known as dispositive cases, the court may not introduce new evidence to the case of its own volition.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

The evidence is heard at the main hearing.

2.3 In which cases can the court reject an application by a party to obtain evidence?

The court can reject the evidence if what the party wishes to prove is of no significance to the case. This also applies if evidence is not required or if the evidence would obviously have no effect. In addition, there are rules that mean that written testimony may only be relied upon in special exceptional circumstances.

2.4 What different means of proof are there?

In Sweden there are, in principle, five different basic forms of evidence (means of evidence). These are:

  • written evidence;
  • examination of witnesses;
  • examination of a party;
  • examination of an expert;
  • inspection.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

A witness is, as a general rule, to be heard orally and in the presence of the court. Written witness testimonies must not be referred to. With the approval of the court, however, the witness may use notes to refresh his or her memory. The party who called the witness starts the examination (this is called direct examination), unless the court determines otherwise. The opposite party then has the opportunity to interrogate the witness (cross-examination).

In the case of evidence from an expert the principal rule is instead that the expert is to give a written statement. If it is requested by one of the parties, and it is does not obviously lack significance, the expert is also to be heard orally during the proceedings. An oral hearing is also to take part if it is essential that he or she is heard directly in the presence of the court.

If the case is to be determined after a main hearing – e.g. in order for the witness to be heard – written evidence and expert statements must in principle be read aloud at the hearing in order for the court to be able to take account of the material in its judgment. The court may, however, decide that written evidence is considered to have been heard at the main hearing without this needing to be read aloud at the hearing.

2.6 Are certain methods of proof stronger than others?

Under Swedish law, the principle of the admissibility of evidence applies. Among other things, this means that there are no set principles laid down in law with regard to the weight that different evidence carries. Instead, the court carries out an independent assessment of everything that has emerged and decides what may be considered as evidence in the case.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

The principle of admissibility of evidence means that that there are no rules that specify that certain circumstances require certain types of evidence in order to be confirmed. Instead the court carries out an overall assessment of the circumstances of the case in its examination of what has been proved.

2.8 Are witnesses obliged by law to testify?

Under Swedish law, a general duty to testify applies. This means that, as a main rule, a person called as a witness is bound to testify.

2.9 In which cases can they refuse to give evidence?

A person is not obliged to testify in a case in which a close relative is a party. A witness may refuse to comment on a certain fact if a statement would mean that the witness was thereby forced to reveal that he or she had committed a criminal or dishonourable act. He or she may also, in certain circumstances, refuse to disclose trade secrets. There are certain restrictions on the duty to testify in the case of some categories of professional, such as healthcare staff.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A person who is to be heard as a witness is summoned to the proceedings under penalty of a fine. If the witness does not appear, the fine is imposed if he or she does not have a valid excuse for his or her non-appearance, e.g. illness. If the witness does not appear, the court can also decide that the witness is to be fetched to court by the police. Ultimately the court has the option of taking into custody a person who refuses to testify without a valid reason for refusing to reply to questions.

2.11 Are there persons from whom evidence cannot be obtained?

If the person called as a witness is under 15 years of age, or suffers from a mental disorder, the court will examine whether he or she may be heard as a witness, taking the circumstances into account. Please also see section 2.9.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

The examination of witnesses is normally begun by the person who called the witness (direct examination). Thereafter, the opposite party has the opportunity to ask questions (cross-examination). After the cross-examination, the person who called the witness and the court may ask supplementary questions. The court is to reject questions that obviously have nothing to do with the case or which are confusing or inappropriate in some other fashion.

Parties, witnesses and others who are to participate in a court hearing must be able to participate remotely via video link if this is not inappropriate. The main rule does, however, remain that those who are to participate must attend court in person.

A witness may be examined by telephone if this is suitable taking into account the costs that would be involved if the witness were to appear at court instead and the importance of the witness being heard in person at the hearing.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The principle of admissibility of evidence means that there are only certain rare exceptions where it is forbidden to use certain types of evidence. That evidence has been acquired in a manner that is not permitted does not therefore, in principle, prevent the proof being relied upon during the trial. It may, however, be of significance if the evidence is given limited evidential value in the weighing of evidence.

3.2 As a party to the case, will my own statement count as evidence?

A party cannot testify, but is instead examined under oath, where the party bears criminal liability for the correctness of the information that he or she provides.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 24/04/2014

Taking of evidence - England and Wales

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The general rule about discharging the burden of proof is that in civil cases, the party asserting the fact has to do so; so that the judge (or jury) is satisfied that on the balance of probabilities the fact being asserted is correct. The burden applies to both parties save where it is so obvious that the claimant has not discharged the burden; here the judge is entitled to proceed without troubling the other side.

In practical terms this means that the court is satisfied on the balance of probabilities that the event occurred. This standard is modified by the fact that the rarer the occurrence, the higher the burden of proof as explained by Lord Hoffman in Secretary of State for the Home Department vs Rehman[1].

[1] [2001] UKHL 47.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

It is not necessary to prove facts which are admitted, or obvious or irrelevant to the case.

The law makes various presumptions which may be rebutted by evidence to the contrary. These include presumptions as to the legitimacy of children, validity of marriages, sanity of individuals, and death of people who have disappeared. Innocence of crime is presumed, but a criminal conviction is admissible in civil proceedings as evidence that a party committed an offence (and means that the party bears the burden of proving innocence).

There is a presumption of negligence where a claimant proves that he or she has suffered harm from a source which was under the defendant’s exclusive control, and that the accident was of a kind which normally arises through negligence[1]. A similar presumption arises where a person has been entrusted with goods and they have been lost or destroyed. In both instances, the presumption can be rebutted by the defendant.

One area where the burden is reversed is in the field of employment discrimination law. Once a primae facie case of discrimination is made out, the burden shift to the other side to show that there was no discrimination. This phenomena arose out of European discrimination legislation and is now in the Equality Act 2010.

Finally there are several civil matters, generally around Health and Safety legislation, where it is a case of strict liability. That is, if the accident happened, it is by virtue of the employer’s strict duty of care that the employer is liable.

[1] [2001] UKHL 47.

[2] The doctrine of res ipsa Loquitor or the thing speaks for itself.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The standard of proof in civil cases is the “balance of probabilities”. In other words, the court will find that a fact is established if satisfied that the fact is more likely to have occurred than not. As noted above the standard operates flexibly: more convincing evidence is required to establish serious allegations, such as fraud on the balance of probabilities- as such allegations are generally regarded to be likely to be true.

This test is modified in two circumstances. In cases where in the absence of a compelling cause there are none the less competing causes the judge is entitled to find that the cause was not proven[1]. Additionally in applications for summary judgment[2] the bar is quite low, the court will make a decision without the benefit of full disclosure or cross examination.

[1] This phenomena was explored in Rhesa Shipping [1985] 1WLR.

[2] Often used in the TCC to enforce an arbitration award to pay a sum of money.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

Evidence[1] is obtained in civil proceedings through the disclosure of relevant documents by the parties, and the testimony of witnesses and experts, the evidence must be before the court

Different rules apply in each case.

  • Disclosure

Parties to civil proceedings are required to disclose[2] the existence of documents in their control or possession, to the extent that the court orders them to do so, and to allow the other parties to inspect those documents. The court will normally order “standard disclosure,” which requires the parties to make a reasonable search for documents which either support or adversely affect the case of any party, without the parties needing to apply to the court. For any other types of disclosure a party must apply for permission from the court. The court may also make orders for the preservation of evidence and property.

  • Witnesses of fact

Parties do not require the permission of the court to adduce witness evidence in support of their cases. However, a party who wishes to rely on the evidence of a witness must serve a witness statement signed by the witness setting out the witness’s evidence, and must call the witness to give oral evidence at trial. If the party does not provide a witness statement or summary for a witness before trial, the party may not call that witness without the court’s permission. Furthermore, the court has wide powers to control the evidence which is allowed, such as excluding evidence which would otherwise be admissible and limiting the cross-examination of witnesses.

A party may also apply for a court order that a witness’s evidence shall be given in a sworn deposition taken by a court-appointed examiner[3] prior to the hearing of the action.

The judge’s role is essentially to assess the evidence adduced by the parties, and does not include an independent fact-finding function.

  • Expert witnesses

A party may not rely on expert evidence[4] unless the court gives permission. The court can control the issues upon which expert evidence is to be given, the form in which the evidence is given, and the fees payable to the expert.

Where more than one party wishes to submit expert evidence on an issue, the court may direct that the evidence shall be given by a single expert instructed jointly by the parties, rather than by a separate expert instructed by each party. The court may make such a direction on its own initiative, without the agreement of the parties.

The court will not require the parties to adduce expert evidence on its own initiative. However, the court may itself appoint an expert as an “assessor” to assist the court in relation to an issue. The court may direct the assessor to prepare a report (copies of which must be provided to the parties) and to attend the trial to advise the court.

Part 35 of the CPR allows for expert evidence to be given concurrently by experts in like disciplines. Generally in these circumstances the parties will cross examine and then the judge will summarise the position to which the experts are invited to agree.


[1] See CPR Part 32

[2] See Part 31 CPR

[3] Part 34.8 CPR

[4] See part 35 CPR

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

  • Disclosure

Following an order for disclosure, each party must serve on the other parties a list of the relevant documents which are, or have been, in its possession or control. The other parties are then entitled to inspect and have copies of the documents. Charges may be made for photocopying.

  • Witnesses of fact

The court will order the parties to serve signed witness statements from each witness on whose evidence they intend to rely before the trial. The statement may be drafted by the witness, but will often be prepared by the lawyer for the party on whose behalf the witness is giving evidence. The statement should set out the witness’s evidence in full, in the witness’s own words if practicable.

If a party has been ordered to serve a witness statement from a witness but is unable to obtain one, the party may seek the court’s permission to provide a witness summary, setting out the evidence which the witness is expected to give or the matters on which the party intends to question the witness.

If the court orders that a witness’s evidence should be taken in a deposition, the witness will give evidence orally before a court-appointed examiner. The examination will be conducted as if it were a trial, with a full opportunity for cross-examination of the witness, and a transcript of the evidence will be produced.

  • Expert witnesses

If the court gives permission for expert evidence, the parties prepare instructions to the expert(s). Where there is a joint expert, the parties may instruct the expert separately if instructions cannot be agreed. The expert, whose overriding duty is to the court and not to the instructing party or parties, will prepare a written report. A party may then put written questions to an expert who was instructed jointly or by another party. Where there are separate experts, the court may also direct that there should be discussions between the experts to identify areas of agreement and disagreement. Expert witnesses are entitled to be paid for their services, normally by the party or parties instructing them.

2.3 In which cases can the court reject an application by a party to obtain evidence?

Whenever parties apply for orders to enable them to obtain or adduce evidence, the court will need to be satisfied that the evidence in question is likely to be relevant and admissible. In considering how to exercise its powers, the court must also seek to deal with cases justly, which includes saving expense and dealing with cases in ways which are fair, expeditious and proportionate to the importance, complexity and value of the claim. These considerations may lead the court to reject applications or to make orders of its own initiative (e.g. requiring a single joint expert rather than separate experts appointed by each party).

2.4 What different means of proof are there?

Facts may be proved by evidence, by presumptions and inferences which arise from evidence, and by the court taking judicial notice of facts (see above). The types of evidence which may be relied upon in civil proceedings are witness testimony, documents and real evidence. Documents can include paper documents, computer records, photographs, and video and sound recordings. Real evidence consists of other material objects relevant to the issues in dispute which are produced to the court, such as the products which form the subject-matter of an intellectual property dispute. It may also include a judge visiting the scene of an accident or some other relevant location to go on a view.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

In principle, witnesses of fact give their evidence orally at trial. However, as stated above, each party is required to serve a witness statement for each witness upon whose evidence the party intends to rely. At trial, the witness will be asked to confirm the truth and accuracy of his or her statement, which will then stand as the witness’ evidence for the party who called him or her. Where only a witness summary has been served, the witness will have to give more detailed oral evidence.

Expert witnesses give their evidence in written reports unless the court orders otherwise. An expert report must set out its conclusions, the facts and assumptions upon which it is based, and the substance of the expert’s instructions. The court will decide whether it is also necessary for an expert to attend trial to give oral evidence. A court-appointed assessor will not be required to give oral evidence.

2.6 Are certain methods of proof stronger than others?

The court has a wide discretion as to the weight or credibility which should be attached to any piece of evidence. There is no rule against adducing a statement made outside court as evidence of the facts contained in that statement (“hearsay” evidence)[1], so a party may rely on a letter as evidence of its contents, or on a witness’s report of a statement made by another person. However, hearsay evidence will often carry less weight than direct testimony, particularly if the maker of the statement could have been called to give evidence.

Certain documents and records are accepted as authentic. For example, the records of businesses and public authorities are accepted as authentic if certified as such by an officer of the business or public authority. And various types of official documents (such as legislation, by-laws, orders, treaties and court records) may be proved by printed or certified copies without any further proof.

[1]See Part 33 CPR and the accompanying Practice Direction to it.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Certain transactions (e.g. wills and sales of land) must be effected in writing, and documentary evidence will therefore be required to prove them.

2.8 Are witnesses obliged by law to testify?

In general, witnesses who are competent to give evidence may be compelled to do so. A party who wishes to secure the attendance of a witness at trial prepares a witness summons requiring the witness to attend court to give evidence. Once issued by the court and properly served, the summons binds the witness until the end of the hearing.

If the court orders that a witness’s evidence should be taken in a deposition but the witness fails to attend or refuses to answer lawful questions, the party requiring the deposition may apply for a further order that the witness attend or answer questions.

2.9 In which cases can they refuse to give evidence?

The general rule that competent witnesses may be compelled to testify does not apply to the Queen, foreign sovereigns and their households, foreign diplomatic agents and consular officials, representatives of certain international organisations, and judges and jurors (in relation to their activities in those capacities). Spouses and relatives of the parties may be compelled to give evidence in civil proceedings.

Witnesses who may generally be required to give evidence are nevertheless entitled to withhold certain documents from inspection and refuse to answer certain questions on the grounds of privilege. The main types of privilege are legal professional privilege (which applies to communications made for the purpose of giving or seeking legal advice, or for the purpose of obtaining evidence for litigation), “without prejudice” privilege (which applies to communications between the parties which are made in a genuine attempt to compromise the dispute, such as offers to settle a claim), and the privilege against self-incrimination (which means that a witness may not be required to give evidence if there is a real danger that it would expose the witness or witness’ spouse to a criminal charge or penalty in the UK). Privilege may be waived.

Evidence may also be withheld on the ground of public interest immunity if its production would be contrary to the public interest. The evidence which may be covered by the immunity includes evidence relating to national security, diplomatic relations, the workings of central government, the welfare of children, the investigation of crime and protection of informants. In addition, journalists are not required to disclose their sources unless disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Bank officers cannot be compelled to produce bank books or to give evidence of their contents unless there are special grounds for the court to order them to do so, but the court may order that a person shall be allowed to inspect or copy bank account entries.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A witness who, having been served with a witness summons, fails to attend court or refuses to testify may be committed for contempt of court and imprisoned (in the High Court) or required to pay a fine (in the County Court).

2.11 Are there persons from whom evidence cannot be obtained?

All adults are competent to give evidence in civil proceedings unless they are incapable of understanding the nature of the oath which witnesses must swear or incapable of giving rational testimony, for example due to mental illness. Where a child witness does not understand the nature of the oath, his or her evidence may still be admitted, but only if the court is satisfied that the child understands the duty to speak the truth and has “sufficient understanding to justify his evidence being heard”.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Role of the judge and the parties

Traditionally, witnesses have given “evidence-in-chief” at trial in response to non-leading questions put by counsel for the party who called them. However, a witness statement will now stand as the witness’s evidence-in-chief unless the court directs otherwise. The witness may then be cross-examined by counsel for the opposing party, who may put leading questions to the witness. Expert witnesses who give oral evidence at trial may also be cross-examined, but a court-appointed assessor cannot be cross-examined by the parties. The judge may put questions to witnesses, usually to obtain clarification of their answers to questions from counsel.

Video link evidence

Evidence may only be provided by video link if the court gives permission. When considering whether to make an order allowing evidence to be given in this way, the court will take into account the convenience of using video conferencing (particularly if a witness is unwell or abroad), the costs or savings associated with using a video link, and the implications for the fairness of the proceedings (including the more limited degree to which the court can control and assess the witness).

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

If communications sent through the post or a telecommunications system (which includes telephone calls, faxes and e-mails) are illegally intercepted, evidence of the contents of those communications may not be given in legal proceedings. Otherwise, evidence is generally admissible even if it was obtained improperly. However, the court has the power to exclude evidence which would otherwise be admissible. In deciding how to proceed, it will balance the importance of the evidence against the gravity of the improper conduct. If the circumstances do not justify excluding the evidence, the court may penalise the party which has acted improperly in other ways, such as by ordering it to pay costs.

3.2 As a party to the case, will my own statement count as evidence?

Statements of case (i.e. the formal documents setting out each party’s case) can be used as evidence at interim hearings, but will not stand as evidence at trial.

Witness statements given by the parties to the proceedings are admissible in evidence to the same extent as statements given by non-parties.

Related links:

Link opens in new windowMinistry of Justice

Link opens in new windowCivil Procedure Rules


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 08/12/2017

Taking of evidence - Northern Ireland

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

In general, the evidential burden of proof falls on the party seeking to rely upon any particular fact. The applicant (in Northern Ireland called ‘the plaintiff’) must prove the facts which give rise to the claim and the defendant must prove those facts which he wishes to rely upon in defending the claim.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

Facts may be exempted from the burden of proof by the law or by a pre-existing contract between the parties. Additionally, the court may consider certain facts proved by ‘taking judicial notice’, for example, matters of general knowledge. Some presumptions are taken as conclusively presumed, for example, if a statute provides this to be so and others may be rebutted, for example, the presumption that a person is sane.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The court must be convinced of a fact on the ‘balance of probabilities’ i.e. that it is at least 51% likely to be true as against 49% likely not to be true. Once a fact is proved on the balance of probabilities, it is taken to be established.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

It is the general rule that a judge may not require the attendance of a witness, except in limited circumstances, but he can call a witness and recall a witness already called. By virtue of the rules which govern court procedure in Northern Ireland, the court has discretion to order any person to attend proceedings and produce a document.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

If a party, usually through his lawyers, is permitted to call a particular witness to give evidence, his own lawyer will question the witness (this is called ‘evidence-in-chief’) and then the other party’s lawyer will cross-examine the witness. The Judge may ask questions of the witness and he will invite the lawyers, to follow up, if they wish, on anything that arises from what he has asked.

2.3 In which cases can the court reject an application by a party to obtain evidence?

In certain cases, for example, where a witness is to attend a hearing in private, the court’s permission must be sought before the witness can be officially summoned to attend. Otherwise, the court has no control over which witnesses are called to give evidence although it may impose costs penalties on parties which call unnecessary witnesses.

2.4 What different means of proof are there?

The main method of proof is by oral testimony. Written testimony, such as reports from an expert, and documentary evidence, such as maps, may also be used.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

The principle means is proof is by oral evidence of the parties and their witnesses. The evidence of expert witnesses, for example, doctors and engineers, may be taken from a written report by agreement. The witness may then be questioned on particular points. Court rules in Northern Ireland restrict the number of expert witnesses who may give oral evidence to two medical experts and one other expert unless leave is granted by the Court to call more.

Maps and documents may also be used as evidence and their authenticity must be proved to the court’s satisfaction. Additionally, the court may wish to go to a scene or look at an actual item if it feels that doing so has some probative value.

2.6 Are certain methods of proof stronger than others?

It is always a matter for the court to decide what weight to attach to any particular piece of evidence.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

There is a presumption that facts will be proved orally and in open court.

2.8 Are witnesses obliged by law to testify?

A competent witness who has been summoned to give evidence is obliged to appear at the hearing and failure to do so is contempt of court.

2.9 In which cases can they refuse to give evidence?

A party may claim ‘privilege’ from having to give evidence on the grounds of the existence of a legal professional relationship; self- incrimination of him or his spouse; public interest and administration of justice. There are other forms of privilege which are guaranteed by statute e.g. diplomatic privilege. Also, there is discretionary privilege, for example, in relation to information given in confidence.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

Yes. A witness would be guilty of contempt of court if he failed to appear having been duly served with a witness summons or ‘subpoena’. The Judge could then impose a fine or period of imprisonment and require the witness to purge the contempt by attending and giving evidence.

2.11 Are there persons from whom evidence cannot be obtained?

Capacity is the general criterion for giving evidence. A person is considered to be capable of given evidence unless he is incapable of understanding the duty imposed by the oath due to infancy or, for example, insanity; he is the judge in the case or he is able to claim privilege.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

The role of the parties, usually represented by lawyers (although there is provision to represent oneself) is to present evidence to the court to prove their case on the balance of the probabilities. The Judge acts as umpire to ensure the questioning of witnesses is fair, lawful and relevant to the points at issue in the case. The Judge can question the witnesses himself but will allow the parties’ lawyers to pursue anything that arises from the witness in response to his questions.

Some limited use is now made, for example in the High Court in Belfast, to facilitate expert evidence via video link or Skype where the expert cannot readily come from another jurisdiction.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The court does not have a general discretion to exclude evidence that has been obtained unfairly. Evidence may only be excluded where there is statutory authority to do so or where it is struck from the record because it is scandalous or an abuse of process.

3.2 As a party to the case, will my own statement count as evidence?

Yes, parties to a case may give evidence on their own behalf.

Related links

Link opens in new windowNorthern Ireland Courts and Tribunals Service


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 15/03/2017

Taking of evidence - Scotland

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

The standard of proof in civil cases in Scotland is on the balance of probabilities with the burden of proof being upon the party who seeks to have a particular issue decided in their favour. In order to do so, that party has to adduce sufficient evidence to support their argument. If evidence is led on a specific issue which leaves the matter in question finely balanced then the party relying on it as part of their case may well lose on that issue.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

There are certain circumstances in which the onus of proof on a particular issue is on a party but that party is not required to lead all or any direct evidence to support it. There are 4 main situations when this arises:

(i) when a presumption operates in favour of a party

(ii) when the matter is judicially noted i.e. the points in issue are matters which can be immediately ascertained from sources of indisputable accuracy

(iii) when a matter between the parties is said to be res judicata i.e. preventing a matter which has already been adjudicated being adjudicated on subsequent occasions

(iv) when the point is formally admitted by the other party at the outset

There are 3 general categories of presumptions.

These are:

(1) irrebuttable presumptions of law – these are fixed principles of law that cannot be “rebutted” or argued away by means of evidence to the contrary.

(2) rebuttable presumptions of law - these may be countered by evidence which shows that in the particular case it is unsafe to arrive at a particular conclusion purely on the basis of a particular fact. However, unless some rebutting evidence is produced, that conclusion is likely to be drawn.

(3) rebuttable presumptions of fact – these arise from the facts of particular cases derived from common human experience. In regard to a rebuttable presumption of fact, Fact A usually means Fact B but because this is not invariably the case the court will hear rebutting evidence.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

There are no legal rules governing the “weight” that is given to a particular item of evidence and this is a matter for the judge and jury. The court must be satisfied by the party on which the onus of proof on a particular issue lies, that their version of the facts is more probable than that of their opponents.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

A judge cannot make investigations on his or her own behalf in a case, or call witnesses or interview them in private. Whenever the case calls for proof, the judge will hear parties on the evidence which they have decided to lead before him or her, and then make a decision in the case.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

In general, once parties have finalised their written pleadings then they can apply to the court to fix a proof. At the proof, parties will present to the judge the evidence which they wish to lead to prove their case.

2.3 In which cases can the court reject an application by a party to obtain evidence?

In instances where the court rules that a particular piece of evidence is inadmissible.

For evidence to be admissible it must satisfy two requirements. It must be relevant and it must conform to the peremptory rules of evidence.

2.4 What different means of proof are there?

There are 3 types of hearing at which evidence in the merits of a case could be led. These are proofs, proofs before answer and jury trials. A proof before answer is a proof in a case in which the court considers it necessary to hear the evidence of both parties before deciding any legal questions which may have to be resolved in order to make a final decision in the case. Almost all hearings of evidence are by way of proof or proof before answer and only very rarely do cases go to jury trial. Jury trials are only available in the Court of Session in particular types of action, and in the specialist Sheriff Personal Injury Court.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

Evidence is normally obtained in 3 ways: by oral, real and documentary evidence of a witness.

Oral evidence includes hearsay evidence which is when a witness simply relates what someone saw or heard. As far as possible, the practice is to have witnesses present in court to give their evidence so that they can be examined and cross-examined.

Real evidence is something tangible and physical and must be lodged as a “production”. Usually, at least one witness must speak to the piece of evidence for it to be admissible.

Documentary evidence may be written, printed, or recorded in some other reliable way such as on tape, video, CD or electronically, and it should also be lodged as a production. Expert witnesses will normally be required to attend court to give their evidence e.g to give testimony in support of a report lodged as a production.

Written evidence such as affidavits are regularly admitted and accepted as evidence in civil proceedings. Expert witnesses will normally attend court to give their opinion as evidence in the proceedings. In many cases, an expert will be speaking in support of a report lodged as a production.

2.6 Are certain methods of proof stronger than others?

There is a general rule that the best evidence must be produced in the case. In Scotland, great value is placed on the oral evidence of a witness rather than other forms of evidence, as the witness is able to provide the court with a first hand account of what they have seen or heard.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

A written document is required in certain circumstances. For instance for the constitution of a contract relating to land, in a trust where a person declares himself or herself to be sole trustee of either his or her own property or any property which he or she may acquire or in the making of any will, testamentary trust disposition and settlement or codicil.

Also in cases where documentary evidence is to be relied upon, then the original of the document must be produced unless the parties accept either a copy of the original or one that has been properly authenticated as a true copy by the person making the copy.

2.8 Are witnesses obliged by law to testify?

Generally speaking, any witness who is cited to give evidence is required to do so.

2.9 In which cases can they refuse to give evidence?

In cases where a witnesses has privilege against answering questions e.g. communications between a legal adviser and his or her client. There is also a general rule in Scots law that a person cannot be forced to incriminate themselves. A witness is entitled to refuse to answer a question if a true answer may lead to a crime or involves an admission of adultery as an untrue answer could lead to a charge of perjury.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

If a person refuses to give evidence then he or she can be forced to testify under threat of a charge of contempt of court. It is also possible to lodge as evidence a previous statement the witness made if they now refuse to give evidence.

2.11 Are there persons from whom evidence cannot be obtained?

No. The Vulnerable Witnesses (Scotland) Act 2004 abolished the ‘competence test' for witnesses in criminal and civil proceedings so evidence is not inadmissible solely because a witness does not understand the duty to give truthful evidence or the difference between truth and lies.  It will be for the judge or jury to decide if the testimony is reliable and credible in light of all the evidence led in the case.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

The role of the judge is to ensure that a witness when giving their evidence is questioned fairly by parties. The judge must also act with impartiality. The judge can also ask questions in order for example to clarify a matter which remains obscure or to open up another line of inquiry which seems relevant. The role of the parties is that they will lead their respective witnesses in turn who will then each in turn be open to cross-examination by the other party or parties.

Under the Vulnerable Witnesses (Scotland) Act 2004 vulnerable witnesses (as defined in the Act) are entitled to apply for special measures (e.g. live TV link, screen, supporter) to help them give their evidence. In certain proceedings under the Children (Scotland) Act 1995 the evidence of a witness can also be taken by way of live TV link.

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

The court has a discretion whether to exclude evidence that has been obtained improperly subject to the overriding objective of the interests of justice.

3.2 As a party to the case, will my own statement count as evidence?

If a party to a civil case gives evidence then the court will take this into account together with any other evidence it has heard when reaching a decision in the case.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 31/08/2017

Taking of evidence - Gibraltar

TABLE OF CONTENTS


1 The burden of proof

1.1 What are the rules concerning the burden of proof?

In general the burden of proving a fact which is in issue rests upon the party asserting that fact as part of its case. Thus the claimant bears the burden of proving the facts which are necessary to establish the claim, while the defendant will generally bear the burden of proving defences to the claim.

If doubts about a fact cannot be resolved, the party who bears the burden of proving that fact will not have discharged the burden of proof, and the court will find that the fact is not proved. However, the judge has a duty to resolve important factual issues and should only find that the burden has not been discharged in exceptional cases.

1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?

It is not necessary to prove facts which are admitted. Judges may also rely on their general knowledge of life to take “judicial notice” of facts which are notorious or clearly established, and evidence of such facts is unnecessary.

The law makes various presumptions which may be rebutted by evidence to the contrary. These include presumptions as to the legitimacy of children, validity of marriages, sanity of individuals, and death of people who have disappeared. Innocence of crime is presumed, but a criminal conviction is admissible in civil proceedings as evidence that a party committed an offence (and means that the party bears the burden of proving innocence).

There is a presumption of negligence where a claimant proves that he or she has suffered harm from a source which was under the defendant’s exclusive control, and that the accident was of a kind which normally arises through negligence. A similar presumption arises where a person has been entrusted with goods and they have been lost or destroyed.

1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

The standard of proof in civil cases is the “balance of probabilities”. In other words, the court will find that a fact is established if satisfied that the fact is more likely to have occurred than not. This standard operates flexibly: more convincing evidence is required to establish serious allegations such as fraud on the balance of probabilities, because such allegations are generally regarded as less likely to be true.

2 The taking of evidence

2.1 Does the taking of evidence always require the application by a party, or can the judge in certain cases also take evidence on his/her own initiative?

Evidence is obtained in civil proceedings through the disclosure of relevant documents by the parties, and the testimony of witnesses and experts.

Different rules apply in each case.

  • Disclosure

Parties to civil proceedings are required to disclose the existence of documents in their control or possession, to the extent that the court orders them to do so, and to allow the other parties to inspect those documents. The court will normally order “standard disclosure,” which requires the parties to make a reasonable search for documents which either support or adversely affect the case of any party, without the parties needing to apply to the court. For any other types of disclosure a party must apply for permission from the court. The court may also make orders for the preservation of evidence and property.

  • Witnesses of fact

Parties do not require the permission of the court to adduce witness evidence in support of their cases. However, a party who wishes to rely on the evidence of a witness must serve a witness statement signed by the witness setting out the witness’s evidence, and must call the witness to give oral evidence at trial. If the party does not provide a witness statement or summary for a witness before trial, the party may not call that witness without the court’s permission. Furthermore, the court has wide powers to control the evidence which is allowed, such as excluding evidence which would otherwise be admissible and limiting the cross-examination of witnesses.

A party may also apply for a court order that a witness’s evidence shall be given in a sworn deposition taken by a court-appointed examiner prior to the hearing of the action.

The judge’s role is essentially to assess the evidence adduced by the parties, and does not include an independent fact-finding function.

  • Expert witnesses

A party may not rely on expert evidence unless the court gives permission. The court can control the issues upon which expert evidence is to be given, the form in which the evidence is given, and the fees payable to the expert.

Where more than one party wishes to submit expert evidence on an issue, the court may direct that the evidence shall be given by a single expert instructed jointly by the parties, rather than by a separate expert instructed by each party. The court may make such a direction on its own initiative, without the agreement of the parties.

The court will not require the parties to adduce expert evidence on its own initiative. However, the court may itself appoint an expert as an “assessor” to assist the court in relation to an issue. The court may direct the assessor to prepare a report (copies of which must be provided to the parties) and to attend the trial to advise the court.

2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?

  • Disclosure

Following an order for disclosure, each party must serve on the other parties a list of the relevant documents which are, or have been, in its possession or control. The other parties are then entitled to inspect and have copies of the documents. Charges may be made for photocopying.

  • Witnesses of fact

The court will order the parties to serve signed witness statements from each witness on whose evidence they intend to rely before the trial. The statement may be drafted by the witness, but will often be prepared by the lawyer for the party on whose behalf the witness is giving evidence. The statement should set out the witness’s evidence in full, in the witness’s own words if practicable.

If a party has been ordered to serve a witness statement from a witness but is unable to obtain one, the party may seek the court’s permission to provide a witness summary, setting out the evidence which the witness is expected to give or the matters on which the party intends to question the witness.

If the court orders that a witness’s evidence should be taken in a deposition, the witness will give evidence orally before a court-appointed examiner. The examination will be conducted as if it were a trial, with a full opportunity for cross-examination of the witness, and a transcript of the evidence will be produced.

  • Expert witnesses

If the court gives permission for expert evidence, the parties prepare instructions to the expert(s). Where there is a joint expert, the parties may instruct the expert separately if instructions cannot be agreed. The expert, whose overriding duty is to the court and not to the instructing party or parties, will prepare a written report. A party may then put written questions to an expert who was instructed jointly or by another party. Where there are separate experts, the court may also direct that there should be discussions between the experts to identify areas of agreement and disagreement. Expert witnesses are entitled to be paid for their services, normally by the party or parties instructing them.

2.3 In which cases can the court reject an application by a party to obtain evidence?

Whenever parties apply for orders to enable them to obtain or adduce evidence, the court will need to be satisfied that the evidence in question is likely to be relevant and admissible. In considering how to exercise its powers, the court must also seek to deal with cases justly, which includes saving expense and dealing with cases in ways which are fair, expeditious and proportionate to the importance, complexity and value of the claim. These considerations may lead the court to reject applications or to make orders of its own initiative (e.g. requiring a single joint expert rather than separate experts appointed by each party).

2.4 What different means of proof are there?

Facts may be proved by evidence, by presumptions and inferences which arise from evidence, and by the court taking judicial notice of facts (see above). The types of evidence which may be relied upon in civil proceedings are witness testimony, documents and real evidence. Documents can include paper documents, computer records, photographs, and video and sound recordings. Real evidence consists of other material objects relevant to the issues in dispute which are produced to the court, such as the products which form the subject-matter of an intellectual property dispute. It may also include a judge visiting the scene of an accident.

2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?

In principle, witnesses of fact give their evidence orally at trial. However, as stated above, each party is required to serve a witness statement for each witness upon whose evidence the party intends to rely. At trial, the witness will be asked to confirm the truth and accuracy of his or her statement, which will then stand as the witness’ evidence for the party who called him or her. Where only a witness summary has been served, the witness will have to give more detailed oral evidence.

Expert witnesses give their evidence in written reports unless the court orders otherwise. An expert report must set out its conclusions, the facts and assumptions upon which it is based, and the substance of the expert’s instructions. The court will decide whether it is also necessary for an expert to attend trial to give oral evidence. A court-appointed assessor will not be required to give oral evidence.

2.6 Are certain methods of proof stronger than others?

The court has a wide discretion as to the weight or credibility which should be attached to any piece of evidence. There is no rule against adducing a statement made outside court as evidence of the facts contained in that statement (“hearsay” evidence), so a party may rely on a letter as evidence of its contents, or on a witness’s report of a statement made by another person. However, hearsay evidence will often carry less weight than direct testimony, particularly if the maker of the statement could have been called to give evidence.

Certain documents and records are accepted as authentic. For example, the records of businesses and public authorities are accepted as authentic if certified as such by an officer of the business or public authority. And various types of official documents (such as legislation, by-laws, orders, treaties and court records) may be proved by printed or certified copies without any further proof.

2.7 In order to prove certain facts, are certain methods of proof obligatory?

Certain transactions (e.g. wills and sales of land) must be effected in writing, and documentary evidence will therefore be required to prove them.

2.8 Are witnesses obliged by law to testify?

In general, in civil proceedings, witnesses who are competent to give evidence may be compelled to do so. A party who wishes to secure the attendance of a witness at trial prepares a witness summons requiring the witness to attend court to give evidence. Once issued by the court and properly served, the summons binds the witness until the end of the hearing.

If the court orders that a witness’s evidence should be taken in a deposition but the witness fails to attend or refuses to answer lawful questions, the party requiring the deposition may apply for a further order that the witness attend or answer questions.

2.9 In which cases can they refuse to give evidence?

The general rule that competent witnesses may be compelled to testify does not apply to the Queen, foreign sovereigns and their households, foreign diplomatic agents and consular officials, representatives of certain international organisations, and judges and jurors (in relation to their activities in those capacities). Spouses and relatives of the parties may be compelled to give evidence in civil proceedings.

Witnesses who may generally be required to give evidence are nevertheless entitled to withhold certain documents from inspection and refuse to answer certain questions on the grounds of privilege. The main types of privilege are legal professional privilege (which applies to communications made for the purpose of giving or seeking legal advice, or for the purpose of obtaining evidence for litigation), “without prejudice” privilege (which applies to communications between the parties which are made in a genuine attempt to compromise the dispute, such as offers to settle a claim), and the privilege against self-incrimination (which means that a witness may not be required to give evidence if there is a real danger that it would expose the witness or witness’ spouse to a criminal charge or penalty in Gibraltar). Privilege may be waived.

Evidence may also be withheld on the ground of public interest immunity if its production would be contrary to the public interest. The evidence which may be covered by the immunity includes evidence relating to national security, diplomatic relations, the workings of central government, the welfare of children, the investigation of crime and protection of informants. In addition, journalists are not required to disclose their sources unless disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Bank officers cannot be compelled to produce bank books or to give evidence of their contents unless there are special grounds for the court to order them to do so, but the court may order that a person shall be allowed to inspect or copy bank account entries.

2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?

A witness who, having been served with a witness summons, fails to attend court or refuses to testify may be committed for contempt of court and imprisoned.

2.11 Are there persons from whom evidence cannot be obtained?

All adults are competent to give evidence in civil proceedings unless they are incapable of understanding the nature of the oath which witnesses must swear or incapable of giving rational testimony, for example due to mental illness. Where a child witness does not understand the nature of the oath, his or her evidence may still be admitted, but only if the court is satisfied that the child understands the duty to speak the truth and has “sufficient understanding to justify his evidence being heard”.

2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?

Role of the judge and the parties

Traditionally, witnesses have given “evidence-in-chief” at trial in response to non-leading questions put by counsel for the party who called them. However, a witness statement will now stand as the witness’s evidence-in-chief unless the court directs otherwise. The witness may then be cross-examined by counsel for the opposing party, who may put leading questions to the witness. Expert witnesses who give oral evidence at trial may also be cross-examined, but a court-appointed assessor cannot be cross-examined by the parties. The judge may put questions to witnesses, usually to obtain clarification of their answers to questions from counsel.

Video link evidence

Evidence may only be provided by video link if the court gives permission. When considering whether to make an order allowing evidence to be given in this way, the court will take into account the convenience of using video conferencing (particularly if a witness is unwell or abroad), the costs or savings associated with using a video link, and the implications for the fairness of the proceedings (including the more limited degree to which the court can control and assess the witness).

3 The evaluation of the evidence

3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

If communications sent through the post or a telecommunications system (which includes telephone calls, faxes and e-mails) are illegally intercepted, evidence of the contents of those communications may not be given in legal proceedings. Otherwise, evidence is generally admissible even if it was obtained improperly. However, the court has the power to exclude evidence which would otherwise be admissible. In deciding how to proceed, it will balance the importance of the evidence against the gravity of the improper conduct. If the circumstances do not justify excluding the evidence, the court may penalise the party which has acted improperly in other ways, such as by ordering it to pay costs.

3.2 As a party to the case, will my own statement count as evidence?

Statements of case (i.e. the formal documents setting out each party’s case) can be used as evidence at interim hearings, but will not stand as evidence at trial.

Witness statements given by the parties to the proceedings are admissible in evidence to the same extent as statements given by non-parties.


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 19/06/2017