European Commission > EJN > Taking of evidence and mode of proof > Estonia

Last update: 10-01-2007
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Taking of evidence and mode of proof - Estonia

 

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 from the burden of proof for certain facts? In which cases? Can evidence to the contrary of these presumptions be produced? b)
2. To which 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) What are the following steps if the application of a party concerning the taking of evidence is approved? a)
b) In which cases is an application of a party for the taking of evidence rejected? b)
5.
a) Which different means of proof are there? a)
b) What is the difference between the means such as the hearing of a witness and the hearing of an expert, or the submission of written evidence and an expert report/opinion? b)
c) Are certain means of proof stronger than others? c)
d) Are certain means of proof obligatory to prove certain facts? 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 forced or sanctioned? 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 technologies such as tele- or videoconferencing? 7.
III. The evaluation of the evidence III.
8. Are there restrictions for the court to base its judgment on evidence which has not been obtained legally by a party? 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?

Each party shall prove the facts on which the claims and objections of the party are based (for example, if the plaintiff cannot prove his claim, the action shall be dismissed). Evidence shall be submitted by the parties and other participants in a proceeding. A court may propose to the parties and other participants in a proceeding that they submit additional evidence. A court may collect evidence on its own initiative for the protection of the public interest.

b) Are there rules which exempt from the burden of proof for certain facts? In which cases? Can evidence to the contrary of these presumptions be produced?

A fact which the court deems to be a matter of common knowledge need not be proved. A fact established by a judgment which has entered into force in a civil matter shall not be contested in another civil matter in which the same parties participate. Such fact shall also not be contested by a third party who participated in the matter. A judgment which has entered into force in a criminal matter or in an administrative offence matter is binding on the court hearing a matter concerning the civil law consequences of an act only with regard to whether the act occurred and whether the person in question committed such act.

If a party admits a fact on which the claim or defence of the other party is based, the court shall deem the admitted fact to be proved unless this violates the rights or lawful interests of other participants in the proceeding, or unless admission was influenced by deceit or force or was based on an error.

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In addition there are a number of legal provisions in legal acts, governing substantive law, which govern presumptions (for example, it is assumed that the possessor is the owner of the thing). These presumptions can be rebutted in the course of court proceeding, i.e. to prove the opposite. At the same time, when something has been established in one matter, then it cannot be contested by the same parties in another matter, i.e. the different situation cannot be substantiated.

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

A court shall accept only evidence which is relevant to the matter. A court shall justify refusal to accept evidence submitted to the court. The court shall evaluate all evidence from all perspectives, thoroughly and objectively pursuant to law. No evidence shall have predetermined weight for a court. Law may provide that certain certificates are presumed to be correct.

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?

Evidence shall be submitted by the parties and other participants in a proceeding. A court may propose to the parties and other participants in a proceeding that they submit additional evidence. A court may collect evidence on its own initiative for the protection of the public interest.

If it is necessary to collect evidence outside the jurisdiction of the court hearing a matter and it is not possible for a participant in the proceeding to obtain such evidence, the court hearing the matter shall issue a ruling on the performance of a procedural act in the court in the jurisdiction of which the evidence can be obtained.

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4.

a) What are the following steps if the application of a party concerning the taking of evidence is approved?

Those steps are not separately governed by the valid law. Once the court accepts a document on the paper carrier as documentary evidence, it shall be added to the file and examined at the court session. In case the court rules on-the-spot-visit of inspection, then it goes to the spot and inspects etc.

b) In which cases is an application of a party for the taking of evidence rejected?

A court shall accept only evidence which is relevant to the matter. Accordingly a court may reject evidence which has no relevance in the matter, but in this case the court must justify refusal to accept evidence submitted to the court.

If pursuant to law a fact must be proved by evidence of a certain type or form, the fact shall not be proved by evidence of another type or form.

See also answer to the question I 1 b).

5.

a) Which different means of proof are there?

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 and other participants in the proceeding are based and other facts relevant to the just adjudication of the matter. Evidence may be the testimony of a witness, statements of a party or third party, documentary evidence, physical evidence, an on-the-spot visit of inspection or an expert opinion.

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b) What is the difference between the means such as the hearing of a witness and the hearing of an expert, or the submission of written evidence and an expert report/opinion?

Testimony of witness: every 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 proceeding.

Statements of parties and third parties: the statements of parties and third parties regarding the facts which are known to them and are relevant to the adjudication of the matter.

Documentary evidence: documentary evidence is a written document or other documents which is recorded by way of photography, video, audio or other data recording, contains information on facts relevant to the adjudication of a matter and can be submitted in a court session in a perceptible form. Official and personal letters are also written documents. A written document shall be submitted as an original document, a copy or an extract. If a document is submitted as a copy or an extract, the court has the right to demand submission of the original document on its own initiative or on the application of another participant in the proceeding.

Physical evidence: physical evidence is a thing the existence or characteristics of which may facilitate ascertainment of the facts relevant to the adjudication of a matter.

On-the-spot visit of inspection: in the course of an on-the-spot visit of inspection, an immovable, area or the scene of an event shall be described in detail and, if necessary and possible, its relevant characteristics shall be photographed or recorded in some other manner. Minutes shall be taken of an on-the-spot visit of inspection.

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Expert assessment: the court has the right to order expert assessment in the cases where non-legal expertise is required to ascertain facts which are relevant to the matter. An expert assessment shall be conducted by a forensic expert from a forensic institution, an officially certified expert or by another qualified person appointed by the court. A court shall consider the opinions of the parties in the appointment of an expert.

c) Are certain means of proof stronger than others?

No. However, law may provide that certain certificates are presumed to be correct. For example according to Art 1 (5) of Notarisation Act it is presumed that notarial deeds and notarial certificates which are prepared within competence and comply with the requirements for formal validity are correct.

d) Are certain means of proof obligatory to prove certain facts?

If pursuant to law a fact must be proved by evidence of a certain type or form, the fact shall not be proved by evidence of another type or form.

6.

a) Are witnesses obliged by law to testify?

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.

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

A witness has the right to refuse to give testimony if:

  1. he or she is or has been married to the plaintiff or the defendant;
  2. he or she is an ascendant or descendant of the plaintiff or the defendant, or is or has been married to such ascendant or descendant;
  3. he or she is a brother or sister of the plaintiff or the defendant, or is or has been married to such brother or sister;
  4. such right arises from another basis provided by law.

A witness has the right to refuse to give testimony on a reasoned basis if his or her testimony may implicate himself or herself or his or her spouse, former spouse, parent, child, brother, sister, grandparent or grandchild in a criminal offence or other improper act.

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

If a witness fails to appear in court upon a summons without a legal impediment, the court may impose a fine on or impose compelled attendance on the witness. If a witness refuses to take the oath, give testimony or answer questions without good reason, the court may impose a fine on or order the detention of the witness. A witness may be detained for up to three months; however, detention shall not continue past the end of the hearing of the matter in the court concerned or after the witness gives testimony or takes the oath or after the need for hearing the witness ceases to exist.

If a participant in a proceeding who applies for the hearing of a witness withdraws the application, or the need for hearing a witness ceases to exist due to some other reason, a witness who failed to appear shall not be fined; however, a paid fine shall not be refunded. A court may, on its own initiative or on the application of a party, order that a witness pay compensation for legal costs caused by the refusal of the witness to take the oath or give testimony or failure of the witness to appear in a preliminary hearing or court session.

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

State public and local government public servants who are prohibited by law from disclosing state or business secrets or other confidential information which become known to them due to their position shall not be heard in court as witnesses with regard to such information.

The following shall not be heard as witnesses without the permission of the person in whose interests the duty to maintain confidentiality is imposed:

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  1. representatives in civil matters or criminal defence counsel in criminal matters, with regard to facts which have become known to them in the performance of their duties;
  2. doctors or other employees of medical institutions, with regard to facts which a patient has confided to them, unless otherwise provided by law.

A minister of religion shall not be heard as a witness with regard to matters confided to him or her. A person shall not be heard as a witness if the law prohibits the hearing of such person in a civil proceeding. A court may refuse to hear as a witness a person of up to 15 years of age or a person who due to a physical or mental disability is unable to comprehend the facts relevant to the matter properly or to give truthful testimony with regard thereto.

If necessary, a witness of up to 15 years of age shall be heard in the presence of a teacher, psychologist, parent or guardian who, with the permission of the court, may also question the witness. A court may remove a participant in a proceeding from the courtroom for the time a witness who is a minor is heard if this is necessary for ascertaining the truth. After the return of the participant in the proceeding, the testimony of the witness who is a minor shall be read to the participant, who has the right to examine the witness. If necessary, a court may remove a witness of up to 15 years of age from the courtroom after he or she has been heard.

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 technologies such as tele- or videoconferencing?

Every witness shall be heard individually. Witnesses who have not been heard shall not be present in the courtroom during the hearing of the matter. A witness who has been heard shall stay in the courtroom until the end of the hearing of the matter unless the court gives the witness permission to leave earlier. A court shall ascertain the identity of a witness and his or her area of activity, education, residence, connection to the matter and relationships with the parties and third parties. A court shall urge the witness to speak only the truth with regard to the matter. A participant in a proceeding who applies for the summoning of a witness shall be the first to question the witness; thereafter, the witness shall be questioned by the other participants in the proceeding. A witness summoned on the initiative of the court shall be questioned first by the plaintiff. A court has the right to question a witness throughout the entire time the witness is heard. A court has the right to exclude leading questions and questions which are not relevant to the matter.

The valid law or practice does not stipulate the conditions of using tele-/video conference.

III. The evaluation of the evidence

8. Are there restrictions for the court to base its judgment on evidence which has not been obtained legally by a party?

The given issue is not governed by the law – thus free evaluation of evidence remains in force.

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

The statements of parties and third parties regarding the facts which are known to them and are relevant to the adjudication of the matter shall be evaluated together with the other evidence collected in the matter. A statement of a legal representative is deemed to be the statement of the party or third party whose legal representative he or she is. The parties, third parties and their legal representatives may give statements under oath with regard to facts which are of particular relevance to the matter. A statement may be taken under oath from a person who has given his or her written consent thereto. A party has the right to apply for the statements of the party, the opposing party or a third party and their legal representatives to be given under oath. If a party wishes to give statements under oath on the initiative of the party, the application shall be submitted in writing.

Further information

« Taking of evidence and mode of proof - General information | Estonia - General information »

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Last update: 10-01-2007

 
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