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

Last update: 21-08-2007
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Taking of evidence and mode of proof - Hungary

 

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 that exempt certain facts from the burden of proof? In what 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 what 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) Do certain methods of proof carry more weight 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. Evaluation of the evidence III.
8. Where evidence has not been obtained legally by a party, are 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?

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 (burden of proof). The court must inform the parties of the range of facts to be proven.

The question as to which party should prove what in a given case depends on the subject of the case, the substantive legal regulations concerned, etc., but since the court always has to inform the parties of the facts to be proven, failure of the lawsuit due to lack of information is excluded.

If an essential (relevant) fact or circumstance remains unproven, it must be evaluated to the disadvantage of the party in whose interest it is that the court accept it as true. However, the burden of proof is not only an aspect of the obligation to prove. The court may call on the other party to provide proof (e.g. to surrender a document in their possession) and, in certain special cases, the court may collect evidence ex officio.

As far as the "quality" of proof is concerned, the court must have absolute certainty concerning the facts that are essential (relevant) to a decision on a dispute. If absolute certainty cannot be reached, under the burden of proof rules the lawsuit fails.

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

On the basis of an admission by the opposing party, an identical statement by both parties or a statement by one of the parties that is not contested by the opposing party despite a court warning, the court may accept facts as being true if it has no doubts concerning them. The court may accept facts that it considers to be publicly known as true. The same applies for facts of which the court has official knowledge; the court will take such facts into consideration even if the parties did not make reference to them. However, during the trial the court must advise the parties of these facts. Naturally, even the facts enumerated can be appealed, and the court itself is not obliged to accept them if it has doubts about their veracity.

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Certain legal regulations govern other presumptions as well (presumption of paternity, presumption of date of conception, presumption of delivery, presumption of death of a person declared dead, etc.). In general, presumptions can be rebutted, i.e. they must be accepted as true as long as the contrary is not proved. However, there are also irrefutable presumptions (e.g. all minors below the age of 14 are incapable) that do not admit proof to the contrary.

2. 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 have absolute certainty of the main facts on which it bases its decision. A high level of certainty is not sufficient to ensure that a judgment is well-founded.

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?

As a general rule, the court orders the taking of evidence on the motions of the parties. The court may order the provision of evidence without a motion of the parties if the law allows it. This exception rule means that the court may present evidence ex officio in special cases only, typically in extraordinary (e.g. civil status) cases.

4.

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

The court orders the taking of evidence on the basis of a motion by one of the parties. The steps that follow depend on what instruments of evidence are ordered by the court: in the case of a testimony it will summon the witness, in the case of an expert opinion it will appoint an expert, etc.

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

The court is not bound by any evidentiary motion or decision to order the provision of evidence. The court will refrain from implementing an order to take (or supplement or reiterate) evidence if the evidence is not necessary for the purpose of judging the dispute. Unless otherwise provided by the law, the court cannot order the provision of evidence if the party, for reasons attributable to him/her, submits the motion late or in a manner incompatible with the conduct of the lawsuit in good faith.

It is not specified exactly in what circumstances the court must reject an evidentiary motion of the parties. Basically, the court must try to prevent lawsuits from dragging on and must reject an evidentiary motion if it is obviously inadmissible. A ruling on an evidentiary motion cannot be appealed separately but may be contested in an appeal against the decision on the merits.

5.

a) What different means of proof are there?

In accordance with the principle of free evidence, the law does not lay down specific rules on the possible means of proof but rather gives examples, e.g. testimonies, expert opinions, reviews, documents and other material evidence. Only sworn statements are excluded from the possible modes of proof; anything else is acceptable.

In accordance with the principle of direct evidence, the court may consider any act of the parties - even silence - as 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?

Testimonies are obtained via the examination of witnesses. Witnesses cannot make testimonies in writing. Testimonies must be recorded before the court of trial; only in exceptional cases can witnesses be heard at their home or place of residence (e.g. if the witness is very elderly, ill, has a physical disability, etc.). The local court in whose area of jurisdiction the witness lives can also be contacted for the purpose of taking evidence.

An expert may make his deposition orally or in writing: if he conducts the investigation before the court and can answer immediately the questions put to him, he submits his evidence orally, otherwise he does so in writing or, if a new deadline is set, orally. The court will set an appropriate deadline for submission of the expert's written deposition.

After the testimony or deposition has been introduced, the court may put questions to both the witness and the expert and the parties may initiate questioning.

c) Do certain methods of proof carry more weight than others?

As follows from the principle of free evidence, the weight of the different pieces of evidence is not predetermined. The court establishes the facts by comparing the pieces of evidence submitted by the parties and others during the evidentiary proceedings; it appraises the evidence as a whole and passes judgment according to its conviction.

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The Hungarian legal system does not refer to greater evidentiary force even in the case of public documents or private documents with full evidentiary force; rather, the law attaches rebuttable presumption to certain types of document whereby the contents of the given documents must be accepted as true until the contrary is proved.

Under the law, a paper or electronic document issued as a public document by a court, notary public or other authority or public administration agency in its field of competence and in a specific form fully confirms the measure or decision and the accuracy of the data and facts contained in it, together with the existence of the statements in it and the date and manner of the statements. A document declared to be a public document by another legal regulation has the same evidentiary force.

A recording made – usually by technical or chemical means – of a public document (photograph, film, sound recording, etc.) or a document drawn up from the original document on any data medium has the same evidentiary force as the original paper-based public document if the recording or document from the data medium is made by a court, notary public, other authority, public administration agency or other entity under the authority of these bodies. A recording or document made by or under the authority of the body appointed to store the document (e.g. archives) and a document made by the issuing authority or body appointed for the safekeeping of the document on the basis of the data obtained from the data medium also has the same evidentiary force.

An electronic document made of a public document by the entity authorised to issue the public document in question within its field of competence and in a specific form, to which a qualified signature and, if provided for by law, a time stamp is affixed, has the same evidentiary force as the original paper-based or electronic public document. An electronic document made in accordance with a procedure specified in a separate legal regulation by the entity authorised to issue the public document in question and a document that is qualified by the law as an electronic public document have the same evidentiary force as the original public document.

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A document (including an electronic document) made of a private document by the entity authorised to issue public documents within its field of competence in a specified form fully confirms that the content of the document in question matches that of the original document. In the case of an electronic document, this evidentiary force is subject also to the requirement that the entity authorised to issue the public document provide the document with a qualified electronic signature and – if a legal regulation so provides – with a time stamp, or that it draw up the document according to a procedure specified in a separate legal regulation. The evidentiary force of a document made of a private document in the form of a public document is the same as that of the original document as far as the content of the private document is concerned.

These rules are also applicable to foreign public documents, provided that the foreign representation authority of Hungary competent according to the place of issue has certified it. Where provided for by an international agreement concluded by the Hungarian state, such certification is not required.

The following criteria must be met in order for private documents to have full evidentiary force:

  1. the issuer wrote and signed the document by his/her own hand;
  2. by signing the document, two witnesses certify that the issuer has signed before them the document not written personally by him/her or that the issuer recognised before them the signature on the document as his/her own signature. The place of residence (address) of the witnesses must also appear on the document;
  3. the issuer's signature or initials have been certified by a magistrate or notary public;
  4. the document issued by a business entity in respect of its business activity has been duly signed;
  5. by affixing his/her regular countersignature to the document he/she drew up, the lawyer (legal counsel) certifies that the issuer has signed before him/her the document not made personally by the issuer, or that the issuer has recognised before him/her the signature on the document as his/her own, or that the content of the electronic document provided with the issuer's qualified electronic signature is identical to that of the electronic document made by the lawyer;
  6. the issuer has affixed his/her qualified electronic signature to the electronic document.

A recording made of a document issued or stored by a business entity [Article 195(2)] and any document made via any data medium certifies with full evidentiary force that its content is identical to that of the original document if the business entity that made the recording or issued or stored the document has duly certified that the recording or document is identical to the original. An electronic document made of a document issued or stored by a business certifies with full evidentiary force that its content matches that of the original document if the entity making the electronic document from the document has affixed a qualified electronic signature and, if a legal regulation so provides, a time stamp, and if the entity drew up the document according to a procedure laid down in a separate legal regulation. The evidentiary force of a document made of a document issued or safeguarded by a business entity is identical in content to that of the original document, while in the case of a document made of a public document it is identical to the private document having full evidentiary force.

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If the document issuer cannot read or does not understand the language in which the document was drawn up, the document has full evidentiary force only if it clearly indicates that its content has been explained to the issuer by one of the witnesses or the authenticating person.

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

Certain special statutory provisions may provide for instruments of evidence that are obligatory, e.g. examination by a mental health expert of a person to be placed under guardianship in a guardianship suit.

6.

a) Are witnesses obliged by law to testify?

Yes.

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

The following can refuse to give evidence:

  1. a relative of any of the parties [a relative means a linear relative, a linear relative's spouse, an adoptive parent, a foster parent, an adopted or foster child, a sibling, spouse, fiancé(e), registered partner, spouse's linear relative or sibling, and sibling's spouse];
  2. a person who would in his or her testimony blame himself/herself or a relative of having committed the criminal offence;
  3. a lawyer, medical doctor or any other person who is committed to secrecy by their profession if their testimony would mean violating their secrecy obligation, unless the party concerned exempts them from that obligation;
  4. the mediator and the expert in mediation proceedings relating to the dispute.

Testimony cannot be refused in points (a) and (b) if:

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  1. the matter concerns a legal transaction in which the witness has already collaborated either as the representative of one of the parties or as a transaction witness, or in which any of the parties was the representative of the witness or if in the legal relationship in question the witness was the legal predecessor of one of the parties;
  2. the matter concerns the descent, marriage, life or death of a family member of the witness, the custody of a child in the witness' family, expenditure, or property rights based on the witness' family relationship.

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

The court may order the following to reimburse the expenses incurred:

  1. 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 went away without permission,
  2. a witness who refuses to give testimony or cooperate, or an expert who refuses to make a statement, without giving a reason or despite the final decision of the court and after being warned as to the consequences,
  3. an expert who, without giving a well-founded reason, delays in giving his or her opinion or does not notify the court of an expected delay in submitting it before expiry of the deadline,

It may also impose a fine. The court may also order the compulsory appearance of the absent witness or expert. The amount of the fine is a maximum of HUF 500 000 and may not exceed the value of the case at issue.

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

Persons who cannot be expected to give accurate evidence because of a physical or mental handicap may not be heard as witnesses. Witnesses who have not been exempted from the requirement of secrecy will not be questioned about matters that qualify as state or service secrets or come under their obligation to keep business secrets, unless under separate legal provisions the issues in question do not qualify as business secrets. The testimony of witnesses questioned despite these provisions may not be taken into account as evidence.

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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?

The court puts questions to the witness. The parties may initiate questioning and court may allow them to put questions directly to the witness.

A witness must be interrogated before the court or before another local court if he/she lives nearer it or if it is more practical in some other way. In exceptional cases (if the witness is very old, ill, has a physical disability, etc.) the witness may be heard at their home or residence.

III. Evaluation of the evidence

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

As the principle of free evidence applies in Hungary, there are no explicit provisions concerning how evidence is obtained. However, to discourage unchecked infringements of the law, the court disregards pieces of evidence obtained in flagrant violation of the law (e.g. the testimony of a person who is unfit to be a witness).

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

It also follows from the principle of free and direct evidence that the court will consider any act and omission in the proceedings (statement, remaining silent, absence, not remembering, etc.) as evidence. However, since the party is not bound (as the witness is) to tell the truth, the court will consider the party's acts together with all the circumstances of the case in reaching a judgment according to its conviction.

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Last update: 21-08-2007

 
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