European Commission > EJN > Taking of evidence and mode of proof > Czech Republic

Last update: 06-11-2006
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Taking of evidence and mode of proof - Czech Republic

 

TABLE OF CONTENTS

I. The burden of proof I.
1.
a) What are the rules concerning the burden of proof ? a)
b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence? b)
2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact? 2.
II. The taking of evidence II.
3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion? 3.
4.
a) If the application of a party concerning the taking of evidence is approved, what steps follow? a)
b) In which cases can the court reject an application of a party to obtain evidence? b)
5.
a) What different means of proof are there? a)
b) 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? b)
c) Are certain methods of proof stronger than others? c)
d) In order to prove certain facts, are certain methods of proof obligatory? d)
6.
a) Are witnesses obliged by law to testify? a)
b) In which cases can they refuse to give evidence? b)
c) Can a person who refuses to testify be sanctioned or forced to give evidence? c)
d) Are there persons from whom evidence cannot be obtained? d)
7. 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 new technology such as television or videoconferencing? 7.
III. The evaluation of the evidence III.
8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment? 8.
9. As a party to the case, will my own statement count as evidence? 9.

 

I. The burden of proof

1.

a) What are the rules concerning the burden of proof ?

The burden of proof stems from the ‘burden of allegation, which is essentially determined by the legal provision on the basis of which a right is to be enforced before a court; in particular, it is the set of facts which must be claimed in a specific case. The Code of Civil Procedure provides that each party is required to prove its claims by specifying the relevant evidence – this obligation is known as the ‘burden of proof’. As a general rule, all persons who make a claim that is relevant to a particular case are subject to the burden of proof.

All parties must fulfil the obligation of the burden of allegation and proof to the extent of their claims. If the facts claimed by a party and the proposed evidence are incomplete, the court is obliged to advise the party of this fact.

If the court holds that facts claimed by any of the parties have not been proved in contentious proceedings, it is required to advise that party that evidence must be proposed for all claims and that if the party fails to honour this obligation it could lose the case. However, the court is required to provide this information only during hearings, not in writing (e.g. in a writ of summons).

If a court has doubts about certain facts, it requests the party to present additional evidence. Where facts can only be proven with expert knowledge, the court usually commissions an expert opinion; if the court has doubts about the correctness of an expert opinion, this opinion must be supplemented or a new opinion must be drawn up.

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b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?

Evidence need not be produced for facts which are generally known (i.e. facts known to a large group of people in a particular place and at a particular time, and hence to the judges) or are known to the court from its other activities, or for legal regulations published or notified in the Collection of Laws of the Czech Republic. The court may become aware of foreign law through its own study, through a statement from the Ministry of Justice, or by means of an expert opinion. All these facts may be rebutted with the proposal of evidence.

For certain categories of facts, the law may stipulate a presumption (the list of such presumptions would go beyond the purpose of this text; an assessment should be made depending on the substantive law governing the specific case); there may be rebuttable presumptions that admit evidence to the contrary and, exceptionally, non-rebuttable presumptions that do not admit evidence to the contrary. In cases of a rebuttable presumption, the court shall consider it proven if none of the parties proposes evidence to rebut the presumption and thus prove facts to the contrary in the proceedings. With some rebuttable presumptions, the contrary may be proven only within a time limit laid down by law.

Another group of facts which need not be substantiated and for which evidence to the contrary is not even available comprises decisions by the competent authorities that a crime, offence or other administrative infraction has been committed which is punishable under separate regulations, decisions on who the offender is, as well as decisions on personal status. However, the court is not bound by a decision that an offence has been committed or by a decision on who committed it if the decision was made in on-the-spot proceedings. No other verdicts under a criminal judgment or decisions on an administrative delict are binding on the court.

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A special type of rebuttable presumption is facts claiming that a party has been directly or indirectly subject to discrimination on grounds of sex or other circumstances. The burden of proof is then borne by the counterparty, who is required to prove that the party was not discriminated against.

Where facts are proven by public instruments, the burden of proof is borne by the party which wants to refute the authenticity of such instruments. In contrast, where private instruments are involved, the burden of proof is borne by the party seeking their application. If a party substantiates claims with a private instrument and the counterparty challenges its authenticity or correctness, the burden of proof then passes back to the party to the dispute which proposed this evidence, who must substantiate its claims by another mode of proof. As a rule, identical claims by parties need not be proven and the court views them as accepted facts.

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

In judicial proceedings, the principle of the free assessment of evidence is applied, i.e. the law does not provide precise limits determining when a court must accept a fact as proven or not. The law provides that ‘the court assesses evidence at its discretion, each piece of evidence separately and all evidence in its mutual context; the court shall take due account of everything which comes to light in proceedings, including the facts presented by the parties’.

In general, if considerations in the evaluation of evidence lead to the conclusion that the truthfulness of claims cannot be confirmed or denied, the judgment will be unfavourable for the party who was meant to prove the truthfulness of its claims.

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The court passes judgment on the basis of its findings. Findings represent a situation in respect of which there are no reasonable or legitimate doubts (i.e. the court may have certain doubts, but they must not be of a fundamental nature).

II. The taking of evidence

3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion?

In contentious proceedings, in general the principle is that the court only furnishes proposed evidence; however, the court may decide that certain evidence will not be taken – as a rule if it deems the fact in question to be proved. In a situation where none of the parties proposes the furnishing of certain evidence, but the need for such evidence has become clear over the course of the proceedings, the court will take such evidence on its own motion.

In contrast, in non-contentious proceedings, i.e. in cases where proceedings may be initiated without a petition, and in proceedings concerning permission to enter into matrimony, proceedings to determine or deny paternity, proceedings to determine whether the consent of a child’s parents is required for its adoption, adoption proceedings, proceedings on the appointment of an arbitrator or presiding arbitrator, proceedings in cases concerning the Commercial Register, proceedings concerning the sanctioning of the termination of a residential lease, proceedings on the dissolution of a political party or political movement, or the suspension and renewal of the activities thereof, proceedings on the legality of detaining a foreigner and on his release, and proceedings on certain matters related to commercial companies, cooperatives and other legal persons, the court is obliged to take further evidence required to determine the facts of the case in addition to the evidence proposed by the parties.

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4.

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

If the application is made during a hearing, the court may order the taking of evidence immediately, if possible, otherwise it decides how and when the evidence will be taken (this depends on the type of evidence etc.).

b) In which cases can the court reject an application of a party to obtain evidence?

It depends on the court which evidence it admits or not. Generally speaking, the court will not take evidence that, in the court’s opinion, cannot help clarify the issue (the purpose of this is to prevent the unnecessary taking of evidence), nor will the court take evidence that would require expense disproportionate to the subject of the dispute. See also question 8. In order for the court to assess clearly which evidence to take, the parties are obliged to propose specific evidence, i.e. to specify witnesses by name and other identification information, and to state the claims in respect of which the proposed witness will testify; the parties are also obliged to specify documentary evidence or state the scope of an issue that an expert is to address in an expert opinion.

5.

a) What different means of proof are there?

In essence, all resources that can be used to determine the facts of a case may be used as evidence. These mainly include the interviewing of a witness, party, or expert, and the examination of a person, item or, of course, documentary evidence.

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b) 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?

Any natural person who is not a party to proceedings is obliged to appear in court if summoned, and to testify as a witness. A witness testifies to what he has experienced and observed. He must tell the truth and not conceal anything. At the beginning of an examination, the identity of the witness must be determined along with circumstances which could affect his plausibility. Witnesses should be informed of the significance of their testimony, of their rights and obligations and of the criminal consequences of a false testimony. The presiding judge asks witnesses to describe everything they know about the subject of examination. The judge then asks questions necessary to fill out and clarify aspects of the testimony. Questions may also be asked by members of the chamber and, with the permission of the presiding judge, by parties and experts.

The obtaining of evidence from experts is different mainly because in most cases experts draw up a written expert opinion and then provide oral comments on this opinion. Proof is obtained by means of an expert opinion in cases where it is necessary to assess circumstances which require expert knowledge. An expert opinion has three parts: the finding, in which the expert describes the circumstances he has examined; the opinion, which contains the expert assessment (expert’s conclusions), and the expert clause. As a rule, experts address specific questions defined by the court, unless an opinion is subject to additional requirements directly under the law (especially in the field of company law). Experts appointed by the court are selected from a list of registered experts and interpreters (kept by regional courts).

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Witnesses provide testimony on facts they noticed directly, whereas experts express comments only in areas where an assessment of the facts depends on expert knowledge. The conclusions reached by an expert are not subject to a court appraisal of their correctness; the court evaluates the persuasiveness of the opinion as regards its completeness in relation to the set requirements, internal consistency and compliance with other evidence obtained.

Documentary evidence is obtained in such a manner that the document or part thereof is read out, or the content is communicated, during the hearing by the presiding judge. The presiding judge may require that a party possessing a document needed as evidence present this document, or may procure this document from another court, authority or legal person.

c) Are certain methods of proof stronger than others?

There is no preference in terms of the methods applied, although some means of evidence may be applied only after the modes of proof required by law become impossible (as a rule, various acts in an obligatory written form – only if, for example, they are destroyed, can evidence be obtained by other means, i.e. by examining witnesses). Evidence obtained by examining a party on his claims may be ordered in contentious cases only if the fact at issue cannot be proved by other means (other than consent to an examination). Therefore other evidence is stronger.

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

In some cases, the law may provide which evidence needs to be obtained; it depends on the specific dispute (e.g. in proceedings on permission to enter into matrimony both the betrothed persons need to be examined).

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Certain facts may be proved only in a particular manner, e.g. a bill or cheque order may be issued solely on the basis of the production of the original of a bill, a decision on the redemption of the bill or other document; a writ of execution may be enforced only on production of an enforceable decision or execution title etc.).

For the establishment of certain obligations or material rights (especially in relation to property), the law requires a written contract – the method of evidence is then derived from this requirement.

6.

a) Are witnesses obliged by law to testify?

Yes, all persons are required by law to appear before a court as a witness if summoned and to testify; they cannot be represented by another person in this case. Witnesses who fulfil their obligation to testify are entitled to a ‘witness allowance’ (the reimbursement of cash expenses and lost earnings).

If a party is inactive or, despite requests from the court, fails to propose all the necessary evidence and the proceedings therefore become protracted, the court may, if petitioned by another party, decide that evidence to prove decisive facts in the case may be specified only in a set time limit which must not be shorter than 15 days.  On expiry of this time limit, the court will not take account of any new evidence proposed, with the exception of evidence whereby the parties challenge the plausibility of the evidence obtained thus far, or evidence which parties have been unable to furnish earlier through no fault of their own.

b) In which cases can they refuse to give evidence?

Witnesses may refuse to testify in cases where such testimony would give rise to the risk of criminal prosecution of the witness or relatives; the court decides whether the reasons for refusing to give evidence are justified. The court must respect the statutory obligation of witnesses to keep certain matters secret or confidential (e.g. in accordance with the law on the protection of classified information; facts specified in the health documentation of a patient – i.e. medical secrets; banking secrets; etc.).

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

A person may be forced to testify by being brought forward by the Czech Police Force or, in extreme cases, by being fined a maximum of CZK 50,000.

d) Are there persons from whom evidence cannot be obtained?

Generally speaking, no category of persons from whom evidence cannot be obtained has been defined; if anything, there is a set of circumstances in respect of which certain persons cannot testify (see question 6.b).

7. 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 new technology such as television or videoconferencing?

Only the presiding judge has the right to examine a witness and he is the person managing the examination. Other members of the chamber and other parties or experts may ask a witness further questions only with the permission of the presiding judge; the presiding judge may refuse a specific question which, for example, is a leading question designed to entrap, or not appropriate or expedient.

The use of modern technology to hear witnesses remotely is not possible at present.

III. The evaluation of the evidence

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

Yes. If a party proposes evidence to prove its claims that has been obtained or procured by the party in contravention of generally binding legal regulations, and the obtaining or procurement of the evidence has resulted in an infringement of the rights of another natural or legal person, the court will view such evidence as inadmissible. Therefore, inadmissible evidence includes a recording of a telephone conversation which has been made without the knowledge of the persons in the conversation (this is prohibited under the Telecommunications Act).

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

In essence a condition for the admissibility of this evidence is that facts which are to be proven in this manner cannot be proven by another means of evidence. Only the examination of parties which the court has ordered separately as procedural evidence to prove claimed facts is considered a means of evidence.

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Last update: 06-11-2006

 
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