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

Last update: 04-05-2007
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Taking of evidence and mode of proof - Slovenia

 

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 general rule is that the parties must state all the facts underlying their claims and objections and present evidence proving those facts (Articles 7 and 212 of the Civil Procedure Act (Zakon o pravdnem postopku – ZPP)).

Plaintiffs must prove the facts which are at the origin of their claims and defendants must prove the facts underlying their objections. Substantive law tells us which of the parties is required to assert and prove a given fact. The consequences of a fact not being proven fall on the party which, according to the norms of substantive law, must assert and also prove that fact (Articles 7 and 215 ZPP).

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?

The requirement of proof covers the facts on which the claims and objections are based, scientific and professional rules and rules based on experience, but not legal rules. The principle applied to legal rules is that the court must be acquainted with them ex officio (iura novit curia).

No proof is required for facts that are acknowledged and generally known (first and fourth paragraphs of Article 214 ZPP).

The court takes an acknowledged fact as the basis for its judgment without checking its veracity (first paragraph of Article 214 ZPP), unless it considers that the party has acknowledged it with the intention of asserting a claim which it may not assert.

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In theory and practice some questions relating to the burden of proof still arise with regard to uncontested facts - facts discovered during the procedure of taking evidence, but not put forward by any of the parties, and legal presumptions.

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

To take a decision on the merits of a plaintiff's claim, the court must have a high degree of material proof and be otherwise convinced of the facts that are relevant in law.

Sometimes a demonstration of probability will even be enough to issue a decision, in particular certain intermediate procedural decisions which do not bring the proceedings to an end and by which the court settles intermediate procedural questions. For the judge to apply a specific procedural rule, the legally relevant facts must be shown to be probable. However, it is not necessary for the judge to be convinced of their existence. The ZPP does not define those facts which can be shown to be probable in order that a certain norm be taken into account.

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 accordance with the adversarial principle, it is mainly the parties who apply for evidence to be taken. The court may also take evidence on its own motion (second paragraph of Article 7 ZPP), if it considers that the parties intend to make inadmissible use of their claims.

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4.

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

The court decides which evidence is taken for the purpose of establishing the decisive facts (second paragraph of Article 213 and Article 287 ZPP). It adopts a decision on the evidence, by which it accepts or rejects the parties' applications, and may also order on its own motion the taking of certain evidence.

If the party's application concerning evidence is approved by court decision, this is then implemented and evidence actually taken. The court is not bound by its decision on evidence. It may change it in the course of the proceedings and take evidence regarding which it rejected a previous application, and may also take new evidence (fourth paragraph of Article 287 ZPP).

Evidence is generally taken at the trial before the judge who will issue the final decision (first paragraph of Article 217 ZPP). If there are valid reasons, evidence may be taken before a specified judge on request (first paragraph of Article 217 ZPP). In exceptional cases it is also possible to take evidence after the trial is completed (Article 291 ZPP).

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

The ZPP specifically provides that the taking of evidence may be rejected only where the evidence is irrelevant to the decision, i.e. it does not serve to establish the legally relevant facts. However, the ZPP contains no specific provisions regarding the scope for rejecting inadmissible evidence or evidence which it is not economic or feasible to obtain.

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Regarding inadmissible evidence and evidence that cannot feasibly be obtained, it is important to comply with the third paragraph of Article 3 ZPP, which states that the court will not recognise the applications of parties which are contrary to binding regulations or contrary to moral rules and provisions regarding the preclusion of evidence.

5.

a) What different means of proof are there?

According to the ZPP: inspections, documents, hearing of witnesses, hearing of expert witnesses and hearing of parties.

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?

Witnesses. Anyone summoned to be a witness must attend and, save where otherwise provided by law, must testify (first paragraph of Article 229 ZPP). Witnesses are heard at the proposal of a party, which must state what the witness is to testify on and give his or her personal details (Article 236 ZPP). Witnesses are called for an appointed date by a special summons in which they must be advised of their obligation to testify, the consequences of unjustified failure to attend and their rights to reimbursement of costs (Article 237 ZPP).

Witnesses are heard at the trial. Witnesses who, because of age, illness or serious physical disability, cannot comply with the summons may be heard in their home (second paragraph of Article 237 ZPP). Each witness is heard individually and not in the presence of other witnesses who are to testify later (first paragraph of Article 238 ZPP). The court advises witnesses of their obligation to speak the truth and not to omit anything. It also warns them of the consequences of giving false testimony. The witness first states what he or she knows about the case. The judge presiding the chamber or members of the chamber and the parties and their representatives and proxies then put questions in order to test the witness' statements or to supplement or elucidate them. If witnesses give statements that are inconsistent, they may be confronted (third paragraph of Article 239 ZPP). The ZPP no longer recognises witnesses' oaths.

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The ZPP makes no distinction between the procedure for hearing ordinary witnesses and "expert" witnesses and lays down no special procedural provisions in that regard. There is no difference in the procedure for hearing witnesses and expert witnesses.

Documents. Although the ZPP does not rank the different means of proof, documents are the most reliable. They can be divided into public and private documents. Public documents are those issued in a prescribed form by a state institution acting within its sphere of responsibility or documents issued in such a form by a local authority, an association or other organisation or an individual in the exercise of public authority entrusted to them by law (first paragraph of Article 224 ZPP). Private documents are all documents that are not public. In a private document the signature may be authenticated by an authorised state institution or a legal or natural person exercising public authority (e.g. a notary). Such authenticated clauses in private documents are of public significance and that part of the document may also be regarded as a public document. The evidential value of public documents is defined separately in the ZPP. A public document proves the veracity of the facts confirmed or specified therein (first paragraph of Article 224 ZPP). The ZPP makes the assumption that the contents of a public document are true. However, it is admissible to prove that facts are inaccurately recorded in a public document or that a public document has been incorrectly drawn up (third paragraph of Article 224 ZPP). Moreover, that is the only rule of evidence in our civil procedure.

Foreign public documents authenticated under the relevant regulations have the same evidential value as Slovenian documents, provided that reciprocity arrangements are applied and save where otherwise provided by international treaty (Article 225 ZPP).

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The ZPP also lays down rules on the duty to provide documents, which depend on whether the document is with the party referring to it, with the opposing party, with a state institution or organisation exercising public authority, or with a third person (natural or legal person).

Expert witnesses. The court takes evidence from an expert witness when technical knowledge is required to establish or elucidate a given fact and such knowledge is not available to the court (Article 243 ZPP). The court designates the expert witness by special decision (first paragraph of Article 244 ZPP). Before the appointment the court hears the parties' views on the matter (second paragraph of Article 244 ZPP). An expert witness may also be appointed by the judge presiding the chamber or by a requested judge, if they are authorised to take such evidence (third paragraph of Article 244 ZPP). Expert witnesses are generally appointed from a special list used by the court. The task may also be entrusted to a specialised institution. Only natural persons can be expert witnesses. Expert witnesses are bound to accept their duties and give their findings and opinion (first paragraph of Article 246 ZPP). The court may impose a fine on an expert witness who fails to come to an appointment despite having been properly summoned; it may also fine an expert witness who declines to carry out his or her tasks without giving justified reason (first paragraph of Article 248 ZPP). Expert witnesses may be released from their duty by the court, at their request, only for the reasons which they may invoke to refuse to testify or answer an individual question, i.e. for the reasons laid down in Articles 231 to 233 ZPP. The court may also release expert witnesses from their duty for other justified reasons (e.g. excessive workload). An exemption for that reason may also be requested by an authorised employee of the institution or organisation in which the expert witness works (second and third paragraph of Article 246 ZPP). An expert witness may also be excluded in the same way as a judge. The only exception is that someone who has already previously been heard as a witness may serve as an expert witness (first paragraph of Article 247 ZPP).

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The task of the expert witness is to state their findings and opinion. The court also decides whether expert witnesses give their findings and opinions only orally at the trial or whether they must also submit them in writing before the trial. If more than one expert witness is appointed, they may give their findings and opinions together, if they agree on them. If they do not agree, each expert witness gives his or her findings separately (Article 254 ZPP). If fundamental differences emerge between the information given by expert witnesses or if the findings of one or more expert witness are unclear, incomplete or self-contradictory, or contradict circumstances that have been investigated, and such anomalies are not rectified by a fresh hearing of the expert witness, evidence is taken again from the same or other expert witnesses (second paragraph of Article 254 ZPP). However, if there are contradictions in the opinion of one or more expert witnesses or their opinion contains anomalies or if reasonable doubt arises regarding the correctness of the opinion given, the opinions of other expert witnesses are requested (third paragraph of Article 254 ZPP). Expert witnesses have the right to reimbursement of costs and the right to remuneration for their work (first paragraph of Article 249 ZPP).

c) Are certain methods of proof stronger than others?

The principle applied in the evaluation of evidence is that evidence is judged freely. The court, acting according to its own convictions, decides which facts are deemed to have been proved, based on a thorough and careful appraisal of each item of evidence separately and all the evidence together and on the success of the proceedings as a whole (Article 8 ZPP). Our civil procedure does not therefore recognise "rules of evidence", whereby the legislator lays down in advance in abstract fashion the value of specific types of evidence. The only exception to this is the rule on the evaluation of public documents.

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In practice, however, the rule applied is that documentary evidence, for example, is more reliable but not stronger than other proof such as the testimony of witnesses or the parties.

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

The ZPP contains no provisions on whether certain methods of proof are obligatory in order to establish the existence of certain facts.

6.

a) Are witnesses obliged by law to testify?

Yes. Anyone who is summoned as a witness must attend and, save where otherwise provided for by law, must also testify (first paragraph of Article 229 ZPP).

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

A person may not be heard as a witness if his or her testimony would infringe the obligation to preserve an official or military secret, unless the competent authority releases him or her from that obligation (Article 230 ZPP).

Witnesses may refuse to testify (Article 231 ZPP):

  • on matters which a party has confided in them as its authorised representative;
  • on matters which the party or another person has confessed to them as a religious confessor;
  • on facts which they have discovered as a lawyer or doctor or in exercising any other profession or any other activity where they are bound by an obligation to keep secret any facts they discover in exercising that profession or activity.

Witnesses may refuse to answer individual questions if they have good reason, in particular if by answering they would bring serious shame, considerable financial harm or criminal prosecution on themselves or lineal blood relatives up to any degree or collateral blood relatives up to the third degree, or if they would bring serious shame, considerable financial harm or criminal prosecution on their spouse or a relative by marriage up to and including the second degree (even where the marriage has already been terminated) or to their guardian or charge, or to their adopted parent or adopted child (first paragraph of Article 233 ZPP).

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However, the risk of causing any financial damage may not be used by witnesses as a reason for refusing to testify on legal transactions where they have been present as witnesses, on actions which they have performed as a legal predecessor or representative of any of the parties regarding a dispute, on facts relating to property regimes linked to family ties or marriage, on facts relating to birth, marriage or death or wherever, pursuant to special regulations, they must submit an application or give a statement (Article 234 ZPP).

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

Yes. If witnesses who have been properly summoned fail to attend and their absence is unjustified or if they have left without permission the place where they should have been heard, the court may order them to be brought by force, at their expense, and may also impose a fine. The court may also impose such a fine on a witness who attends but then, after having been warned of the consequences, declines to testify or to answer specific questions for reasons that the court deems to be unjustified. In the latter case the court may, if the witness is still unwilling to testify, imprison the witness until such time as he or she is willing to testify or until they need no longer be heard, but for no longer than one month (second and third paragraph of Article 241 ZPP).

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

A witness may be any person who is capable of giving information on the facts to be proved (second paragraph of Article 229 ZPP). Eligibility to be a witness does not depend on legal capacity. A child or a person who has been declared partly or wholly legally incapable can be a witness if he or she is indeed capable of giving information on the legally relevant facts. The question of whether or not a witness is capable of testifying is assessed by the court on a case-by-case basis.

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A party or a party's legal representative may not be a witness, whereas an ordinary representative (pooblaščenec) or an intervenor (stranski intervenient) may.

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?

As regards the hearing of witnesses, see reply to point 5(b).

New technologies, e.g. television or video links, are not currently used in practice for the hearing of witnesses in Slovenia, although the ZPP does contain provisions on recording proceedings using appropriate modern technology (e.g. tape recordings) or stenograph equipment (Article 125 ZPP).

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? 

In Slovenian legal theory, case law and legislation the problem of evidence obtained inadmissibly has hitherto cropped up only in connection with criminal proceedings. At present the ZPP contains no specific provisions on inadmissible evidence.

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

If the statement forms part of the complaint or an application of some kind, it will not count as evidence, but will have the status of an actual assertion by the party, for which the party must also present appropriate evidence. If the statement is contained in a document submitted as evidence of a party's assertions, that statement will have the status of a document.

A statement given by a party during their hearing also counts as evidence, as the ZPP also recognises the hearing of parties as evidence (Article 257 ZPP).

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Last update: 04-05-2007

 
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