Taking of evidence and mode of proof - Lithuania
TABLE OF CONTENTS
The burden of proof
What are the rules concerning the burden of proof?
Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing the evidence?
To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?
The taking of evidence
Does the taking of the evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motivation?
If the application of a party concerning the taking of evidence is approved, what steps follow?
In which cases can the court reject an application of a party to obtain evidence?
What different means of proof are there?
What are the methods of obtaining the 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?
Are certain methods of proof stronger than others ?
In order to prove certain facts, are certain methods of proof obligatory?
Are witnesses obliged by law to testify?
In which cases can they refuse to give evidence?
Can a person who refuses to testify be sanctioned or forced to give evidence?
Are there persons from whom evidence cannot be obtained?
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 evaluation of the evidence
Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?
As a party to the case, will my own statement count as evidence?
I. The burden of proof
a) What are the rules concerning the burden of proof?
According to the Code of Civil Procedure of the Republic of Lithuania, the
burden of proof lays upon the parties to the case:
Article 178. Burden of proof
Parties must prove the circumstances used as a basis to substantiate their
claims and replications except for circumstances that are considered
indemonstrable in accordance with the procedure defined by the Code.
Article 12. Principle of competition
In all courts, civil cases are heard based on the principle of
competition. Each and every party shall prove such circumstances, which were
used to base their claims and replications, except for the cases, when
circumstances used do not have to be proved.
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 the evidence?
The facts, which are exempt from the burden of proof, are listed in the Article 182 of the Code of Civil Procedure. It should be also noted that those facts could be challenged by providing the evidence in the general procedure.
Article 182. Release from averment
The following circumstances shall be considered indemonstrable:
- circumstances acknowledged by court as known to everybody;
- established in effective judgements in other civil or administrative proceedings where participants were the same persons except in cases when the judgement causes legal consequences for other persons not involved in the proceedings (prejudicial facts);
- consequences of personal acts constituting an offence, if such consequences have been adjudged in an effective judgement in criminal proceedings (prejudicial facts);
- presumable in accordance with valid laws and unchallenged in the general procedure;
- substantiated on facts admitted by parties (Article 187 of the Code below).
Article 187. Admission of facts
- A party is entitled to admit to the facts used as a basis by another party to substantiate the latter’s claim or replication.
- A court may consider the admitted fact established, if it believes the admission is in compliance with circumstances of the case and is not stated for deception, violence, threat, by mistake or in order to suppress the truth.
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 the case when proofs provided permits a court to make a conclusion that
there is a better possibility that a certain fact existed than on the
contrary, the court acknowledges those facts as established.
II. The taking of evidence
3. Does the taking of the evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motivation?
According to the Article 179 of the Code of Civil Procedure parties and
other participants in a proceeding presents the evidences. Although if the
obtained evidence is not enough, the court may offer the parties and other
participants in the proceeding to provide the court with corroborative
evidence and fix a time-limit for presentation thereof. Also the court is
entitled to collect evidence on its own initiate (ex officio) exclusively in
cases stipulated by the Code and other laws.
The court is entitled by the Code to collect evidence on its own initiate
while hearing family or labour cases if, in its opinion, this is essential in
order to fairly decide the case (Articles 376 and 414).
Also Article 476 of the Code of Civil Procedure stipulates that a court in
preparing to hear the cases concerning the declaration of a minor to be of
full active capacity (emancipated):
- charge the state
institution for the protection of the child’s rights of the minor’s
place of residence with submitting its opinion concerning the readiness
of the minor to independently realise all his civil rights or perform
- demand data about
whether the minor has been convicted or whether he has committed a
violation of administrative law or of another law;
- if it is necessary
to establish the level of the minor’s physical, moral, spiritual, or
mental development, assign a forensic psychological and/or psychiatric
examination and demand any of the minor’s medical documents or other
material necessary to perform said examination;
- perform any other
actions necessary to prepare for hearing the case.
The Article 582 of the Code of Civil Procedure also stipulates, that when
the issue of permitting to transfer the title to the family property,
pledging or the family property or otherwise encumbering the rights thereto
is considered, the court, taking into account the circumstances of the case,
has the right to demand from the applicant to submit proof of the material
situation of the family (income, savings, other property, liabilities), data
on the family property being transferred, data from the Agency for the
Protection of the Rights of the Child on the child’s parents, as well as
preliminary terms and conditions, performance possibilities of the future
transaction, the possibilities of protection of the rights of the child in
case of failure to perform the transaction and other proof.
a) If the application of a party concerning the taking of evidence is approved, what steps follow?
In order to gather the evidences, according to Article 199 and 206 of the
Code of Civil Procedure:
- a court may require
to present a written or real evidence from a legal or natural person,
which should be submitted directly to the court within fixed
time-limits. If natural or legal persons are unable to submit the
requested a written or real evidence at all or are unable to do this by
the fixed time-limit, they must advise the court and indicate the
reasons of non-submission;
- a court may issue a
person requesting to recover written or real evidence a certificate
entitling to obtain the evidence for submission to the court.
During preparation for a court hearing, a judge also carries out other
procedural actions necessary for proper preparation of the case for the court
hearing (recover evidence that may not be obtained by the participants in the
proceedings, collect evidence ex officio when such a right is afforded to the
court in the Code of Civil Procedure, etc.).
b) In which cases can the court reject an application of a party to obtain evidence?
A court may reject the proof in cases:
- where it is not
- evidence does not
that confirms or denies circumstances relevant to the case (Article 180
of the Code of Civil Procedure);
- if it could have
been presented earlier and later presentation thereof will delay the
proceedings (Para 2 of Article 181 of the Code of Civil Procedure).
Any documents or other evidence, on which the plaintiff is basing his
claims as well as any information that the official fee has been paid and
petitions concerning a request for evidence, which the plaintiff is unable to
submit, indicating the reason why it is impossible to submit this evidence should
be annexed to the statement of claim in order to be accepted by a court
(Article 135 of the Code of Civil Procedure).
It also should be mentioned that the court of appeal instance will refuse
to accept new evidence, which could have been submitted in the court of first
instance except in cases where the court of first instance refused without
grounds to accept it or where the necessity of submitting this evidence arose
later (Article 314 of the Code of Civil Procedure).
a) What different means of proof are there?
According of the Code of Civil Procedure evidence in civil proceedings
means any actual data serving as a basis for a court to state in the
statutory procedure existence or non-existence of circumstances substantiating
claims and replications of parties as well as other circumstances important
for fair deciding on the case. The mentioned data can be found out basing on:
statements of parties or third persons (in person or by representative),
testimonies of witnesses, written evidence, real evidence, inspection
protocols and expert reports.
Legally obtained photo pictures, audio and video recordings may also serve
as tools of averment.
b) What are the methods of obtaining the 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 rules on the methods of obtaining the evidences from witnesses and
from expert witnesses are stipulated in the Article 192 and 217 of the Code
of Civil Procedure:
Article 192. Witness examination
- Each witness shall
be summoned to a courtroom and examined individually. Unexamined
witnesses may not stay in a courtroom during the hearing. Examined
witnesses shall stay in a courtroom until closing of the hearing. At the
request of the examined witnesses, the court may let him leave the
courtroom after hearing the opinion of participants in the proceeding.
- A witness may be
examined in situ if he may not appear upon summoning to a court
due to illness, old age, disability or other legal substantial reasons
and a participant in a proceeding who initiated calling of the witness
may not ensure appearance of such witness to the court.
- A court shall
identify personality of a witness; explain witness rights and duties as
well as liability for oath breaking and non-fulfilment or improper
fulfilment of other duties of witnesses.
- Before undergoing
examination, a witness shall take an oath by putting a hand on the
Constitution of the Republic of Lithuania and saying: “I, (full name),
honestly and decently swear to tell the truth, without any suppression (suppressio
veri), addition to or change of evidence”. The sworn witness shall
undersign the wording of the oath. The signed oath shall be enclosed to
the minutes of the court session.
- Having found out
witness’s relations with parties, third persons and other circumstances
important for witness evidence (education, field of activities of the
witness, etc.), a court shall invite the witness to tell the court all
he knows in relation to the case, but to avoid information which sources
cannot be referred to by the witness.
- After taking witness
evidence, the witness may be asked questions. The witness shall be first
examined by a person who requested summoning the witness and by a
representative of such person. Then the witness shall be examined by
other participants in the proceeding. A judge shall eliminate leading
questions and questions irrelevant to the case. A judge shall be
entitled to give questions at any moment of witness examination.
- If necessary, at the
request of a participant in a proceeding or on its own initiative (ex
officio) the court may re-examine a witness at the same session, call the
examined witness to another session of the same court or confront
Article 217. Examination of experts
- Expert opinion shall
be loudly read in a court session. Before expert opinion is read, the
expert (experts) in charge for the expertise and participating at the
court session shall take an oath by putting a hand on the Constitution
of the Republic of Lithuania and saying: “I, (full name), swear to
perform the duties of an expert with honesty and to produce the
impartial and reasoned expert opinion according to the best of my
knowledge”. If expertise is conducted outside the court session, the
wording of the oath undersigned by the expert shall constitute an
integral part of the expertise report.
- A court is entitled
to offer an expert to explain his opinion orally. Oral explanation of
the expert opinion shall be included in the minutes of the court
- Experts may be asked
questions to explain or supplement the expert opinion. A person
requesting for appointment of expertise shall be the first to ask the
expert questions. Then the expert may be questioned by other
participants in the proceeding. If an expert is appointed by a court ex
officio (on its own initiative), the plaintiff shall be the first
one to ask the expert questions.
- Judges shall be
entitled to ask an expert questions at any time of his examination.
Expert opinion is provided (according to the rules set out in Article 217
of the Code of Civil Procedure) only by the request of a court (in writing:
in the form of expertise report). The expertise report shall include detail
description of examinations; conclusions made basing on such examinations and
reasoned answers to the questions given by the court.
It should be noted, that if the opinion of the expert is required by the court
without the expertise the opinion of the specialist is considered as the
written evidence, which is submitted by expert (as by other participants in a
proceeding) or recovered by a court in accordance with the procedure
stipulated by the Code of Civil Procedure.
The rules on the submission of written evidences is provided in Article
198 of the Code of Civil Procedure:
Article 198. Submission of written evidence
- Written evidence may
be submitted by participants in a proceeding or recovered by a court in
accordance with the procedure stipulated by the Code.
- Written evidence
shall be submitted in the form defined by Article 114. Documents signed
by participants in a proceeding and transmitted via telecommunication
terminals in accordance with laws and other regulations shall be equal
to a written form of a document. If written evidence is made in a
language other than the official language, translation of the evidence
certified in the established procedure shall be enclosed thereto.
Original case documents may be delivered back at the request of
submitters. In this instance, copies of the returnable documents
certified in the procedure stipulated by the Code shall be retained.
c) Are certain methods of proof stronger than others ?
According to the Article 197 of Code of Civil Procedure documents issued
by state and municipal authorities, approved by public officials within the
limits of their competence and in accordance with requirements applied to the
form of particular documents are considered official written evidence and
have bigger evidential value. Circumstances indicated in official written
evidences are considered fully proved until and unless they are denied by
other relevant proofs except for witness evidence. A ban to employ witness evidences
will not apply if this contradicts the principles of fairness, justice and
reasonability. Evidential value of official written evidence may be statutory
conferred upon other documents as well.
d) In order to prove certain facts, are certain methods of proof obligatory?
According to the Code of Civil Procedure circumstances of the case that
are required by laws to be proved by means of particular tools of averment
may not be proved using any other measures of averment (Para 4 of Article 177).
a) Are witnesses obliged by law to testify?
The Code of Civil Procedure obliges the summoned witness to appear before
a court and give fair evidence. A person summoned to witness is liable under
the law for non-fulfilment of witness’s duties (Article 191).
b) In which cases can they refuse to give evidence?
According to the Para 2 of Article 191 of the Code of Civil Procedure
Evidentiary privilege may be exercised in cases when witness evidence would
constitute evidence against oneself, family members or close relatives.
c) Can a person who refuses to testify be sanctioned or forced to give evidence?
In case of failure by witnesses, experts or interpreters/translators to
appear at the hearing, the court may ask for the opinion of the persons
participating in the proceeding as to possibility to consider the case in the
absence of the witnesses, experts or interpreters/translators and pass a
ruling to continue or defer the case hearing. If a summoned witness, expert
or interpreter/translator fails to appear in the court without a relevant
reason, he may be ordered a fine in the amount of one thousand litas and the
witness may also be brought to the court on the basis of a court ruling.
(Article 248 of Code of Civil Procedure)
d) Are there persons from whom evidence cannot be obtained?
The Code of Civil Procedure stipulates that the following persons may not
be interviewed as witnesses (Para 2 of Article 189):
- representatives in
civil proceedings or defence counsel in criminal proceedings about
circumstances obtained by them in performance of their duties of the
representative or defence counsel;
- persons, which are
unable to understand relevant circumstances or give fair evidence due to
physical or mental defects;
- clergy about
circumstances obtained by them in the confessional;
- the medical
profession about circumstances constituting their professional secrets;
- other persons
defined by laws.
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?
According to the Code of Civil Procedure, after taking witness evidence,
the witness may be asked questions. The witness firstly is examined by a
person who requested summoning the witness and by a representative of such
person, and then by other participants in the proceeding. A judge will
eliminate leading questions and questions irrelevant to the case. A judge is
entitled to give questions at any moment of witness examination. If
necessary, at the request of a participant in a proceeding or on its own
initiative (ex officio) the court may re-examine a witness at the
same session, call the examined witness to another session of the same court
or confront witnesses (Article 192).
As to the question on the possibility and conditions on hearing of
witnesses via television or videoconference, it should be noted that
a court, according to the Para 3 of Article 803 of Code of Civil Procedure,
may request the court of the other state to use such communication
technologies in order to gather evidences.
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?
According to the Article 177 of Code of Civil Procedure, legally obtained
photo pictures, audio and video recordings may also serve as tools of
averment. On the other hand, actual data comprising state or official secrets
may not serve as evidences in civil proceedings until and unless they are
made public in the statutory procedure.
Also it should be mentioned, that according to Article 185 of the Code of
Civil Procedure, a court judges on the case evidence in accordance with its
self-belief based on comprehensive and unbiased examination of the evidences
averred during the trial. No evidence has any pre-stipulated power over a
court except for cases provided for in this Code.
9. As a party to the case, will my own statement count as evidence?
Yes (see answer to question 5 a)).
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