Taking of evidence - Hungary
TABLE OF CONTENTS
- 1 The burden of proof
- 1.1 What are the rules concerning the burden of proof?
- 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?
- 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?
- 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?
- 2.2 If the application by a party concerning the taking of evidence is approved, what steps follow?
- 2.3 In which cases can the court reject an application by a party to obtain evidence?
- 2.4 What different means of proof are there?
- 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?
- 2.6 Are certain methods of proof stronger than others?
- 2.7 In order to prove certain facts, are certain methods of proof obligatory?
- 2.8 Are witnesses obliged by law to testify?
- 2.9 In which cases can they refuse to give evidence?
- 2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?
- 2.11 Are there persons from whom evidence cannot be obtained?
- 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?
- 3 The evaluation of the evidence
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?
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.
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Last update: 16/10/2017