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

Last update: 16-12-2008
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Taking of evidence and mode of proof - Slovakia

 

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 rule according to which the court takes evidence for a hearing are based on Article 48 (2) of the Constitution.

Where it is effective a different court may be requested to take evidence or evidence be taken outside of proceedings. Parties to proceedings have the right to be present at such taking of evidence.

Parties are required to indicate evidence to prove their allegations. The court decides which of the indicated evidence to hear.

The court may exceptionally take other evidence suggested by parties, if taking it is necessary for deciding matters.

The court may decide to have evidence taken supplemented or repeated before it.

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?

An exception to taking evidence for a hearing is fulfilment of conditions for issue of a decision without a hearing. Such exceptions are issue of a payment order, statement of inheritance pursuant to Section 175zca of the Rules of Civil Procedure, issue of judgements pursuant to Section 115a of the Rules of Civil Procedure - provided it is not in contradiction with the public interest and if it is possible to decide on the matter only on the basis of documentary evidence submitted by parties and the parties agree with the decision on the matter without the ordering of a hearing or expressly waive the right to a public hearing of the matter, issue of judgements pursuant to Section 153a of the Rules of Civil Procedure - if, during the proceedings the respondent recognises the claim asserted by the suit or its basis before the court or if the plaintiff waives his claim before the court, and all cases of decision-making on the merits of a case pursuant to Section 214 (2) of the Rules of Civil Procedure, i.e.

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  • if appeal is rejected pursuant to Section 218,
  • if proceedings are stopped or suspended,
  • if appeal is made against a ruling,
  • if it concerns decision-making on legal capacity, expression of the admissibility of acceptance or residence in a healthcare institution or pronouncement as dead,
  • if a decision pursuant to Section 221 (1) is repealed,
  • if the appeal concerns just the costs of proceedings, accessories of a receivable or its maturity or preliminary executability of a judgement,
  • if appeal is made against a ruling deciding only on the subsistence of a minor.

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

When reviewing evidence the court is not fundamentally limited in the type of evidence evaluated by legal regulations in terms of veracity. The principle of unrestricted assessment of evidence is applied. Only rarely does the law impose certain restrictions on the court in the review of evidence, like, for example, a fact for which an assumption allowing counter evidence is stipulated in law is assumed as proven by the court, unless disproven in proceedings – Section 133 of the Civil Code.

According to Section 134 of the Civil Code documents issued by Slovak courts or other state bodies within the bounds of their jurisdiction and documents which are declared as public by special rules confirm a regulation or declaration of the body which issued the document and, unless the opposite is proven, the veracity of that which is certified or confirmed in them.

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The court is bound by a decision of the Constitutional Court on whether a certain legal regulation is in contradiction with the Constitution, with the law or with an international treaty which the Slovak Republic is bound. The court is also bound by a decision of the Constitutional Court or European Court for Human Rights concerning fundamental human rights and freedoms. Furthermore the court is bound by decisions of competent bodies on whether a criminal act, offence or other administrative delict punishable pursuant to special rules has been committed; however, a court is not bound by a decision in citation proceedings.

Otherwise a court may decide issues in the competence of another body. If, however, a decision has been issued by the competent body on such an issue, the court shall proceed from it.

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?

Parties are required to indicate evidence to prove their allegations. The court shall decide which of the indicated evidence to hear.

The court may exceptionally hear other evidence than that suggested by parties, if its hearing is necessary for deciding matters. It may also decide to have evidence heard supplemented or repeated before it.

4.

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

A court takes evidence for a hearing, unless conditions for issue of a decision without a hearing have been met.

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Parties have the right to respond to motions for evidence and all evidence heard.

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

A court evaluates evidence based on its own consideration, each piece of evidence individually and all evidence in correlation, whereas it carefully considers everything brought to light in the proceedings, including that presented by parties.

A certain limiting of the unrestricted consideration of evidence applies to the appeal court, when the appeal court is not bound by the facts of a case, if established by the court of first degree. It may thus reach a different factual judgement. However, it cannot depart from the evaluation of the specific evidence by the court of first degree. It may only assess evidence taken by the court of first degree differently if it hears that evidence again.

5.

a) What different means of proof are there?

All resources by which the state of matters can be established can serve as evidence, particularly examination of witnesses, expert evidence, reports and responses of bodies, natural persons and legal entities, documents, examination of parties. If the manner of taking evidence is not prescribed, the court shall specify it.

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?

A witness is a person distinct from the court and parties to proceedings who testifies on facts which they have perceived with their senses. Only a natural person may be a witness.

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In matters within the jurisdiction of civil courts expert opinions of facts which serve as the factual basis for decision-making on the merits of a case are often required. Since decision-making on the merits of a case depends on evaluation of facts for which expert knowledge is required, the court appoints an expert after hearing the parties. In such case the court must appoint an expert, even if the judge has expert knowledge which would allow him to expertly evaluate the subject of proceedings. This knowledge cannot substitute for objective findings of the facts of a case extraneous to the body deciding on them.

A basic function of the court is to correctly formulate questions for the expert. The court is required to ask the expert only factual questions and avoid questions concerning the legal judgement of the subject of the expert opinion.

The expert opinion can be reviewed by another expert, scientific or other institution if it is an opinion whose subject is review of an earlier submitted opinion. In practice this is sometimes indicated as a control opinion.

The court shall consider the expert opinion like any other evidence. The composition of the expert opinion must allow its content to be reviewed and legitimacy of procedures to be checked.

c) Are certain methods of proof stronger than others?

The court approaches the consideration of individual evidence in terms of their trustworthiness and veracity. The court is not limited in what evidence to consider by legal regulations – the principle of unrestricted consideration of evidence applies. The consideration of the court is not arbitrary; it must proceed from everything which was brought to light in the proceedings. The court should respect these facts and must correctly determine their correlation. Simultaneously the court is not bound by any order of significance or conclusive force of individual evidence.

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

In matters where proceedings may begin without proposal and in proceedings on permission to contract marriage, on determination and refuting of parenthood, on adoption, in matters of the commercial register and in proceedings on some matters of commercial companies and cooperatives the court is required to take other evidence required for establishing the facts, though not so proposed by the parties.

6.

a) Are witnesses obliged by law to testify?

Every natural person is required to appear at court following a summons and testify as a witness – provisions of Section 126 (1) of the Rules of Civil Procedure. They must tell the truth and conceal nothing.

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

A witness may refuse to give evidence only if it would cause them or persons close to them to be endangered by a criminal act. The court shall decide on the legitimacy of refusing to testify. They may refuse also where testimony would breach a secret of the confessional or confidential information revealed to them as a person entrusted with pastoral care verbally or in writing under the conditions of maintaining confidentiality.

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

The court shall decide on the legitimacy of the refusal to testify. Appeal is not permissible against the court judgement. If, even despite the judgement of the court, the witness refuses to testify, the court may use procedural measures pursuant to Section 53 of the Rules of Civil Procedure, that is imposition of a procedural fine of up to SKK 25 000.

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The court may by judgement impose a procedural fine of up to SKK 50 000 for repeated gross aggravation of the process of the court.

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

The court should always hear the statutory representative of an organisation which is a party in civil proceedings as a party to proceedings and not as a witness.

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?

Before examining the witness the court must establish their identity and the circumstances which could affect their credibility. Furthermore, it is necessary to instruct the witness on the significance of the testimony, his rights and obligations and the criminal consequences of false testimony.

The presiding judge or sole judge invites the witness to coherently describe everything they know about the subject of the examination. After they ask the witness questions necessary for supplementing and clarifying the testimony. Judges from the panel may also ask questions and, with the consent of the presiding judge or sole judge, parties and experts.

In connection with questions asked of the witness it is necessary to draw attention to the inadmissibility of captious and suggestive questions. The presiding judge may bar such questions or questions which are significant in terms of judgement of a matter asked by a party to proceedings or expert. They shall decide by judgement which is not delivered and against which no appeal is allowable. The judgement is also part of the court record.

As concerns new technologies for hearing witnesses, e.g. television or videoconferencing, these methods are not arranged in our Rules of Civil Procedure.

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?

Again we should state that the court is not limited in what evidence to consider by legal regulations – the principle of unrestricted evaluation of evidence applies.

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

The court judges the actions of parties, their representatives and other persons involved in proceedings systematically according to their content and not according to how they are designated. Actions of parties are governed by the principle of informality. Parties may on principle perform a procedural act according to consideration – expression of volition by written submission or verbally in the record with the same legal effect, but always expressly or so that there is no doubt as to their actual volition.

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Last update: 16-12-2008

 
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