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We make a distinction between interim measures and securing evidence.
Before proceedings begin, a court may decide to issue an interim measure, which consists in a temporary arrangement between the parties or in interlocutory proceedings to ensure execution of a court decision. Before proceedings on the merits of the case begin, the court can also secure (i.e. take) evidence (e.g. hear a witness, have an expert opinion drawn up, examine a document), if there are fears that it will be impossible or very difficult to obtain it later.
A party to proceedings who has an interest in securing certain evidence or in obtaining interim measures must apply to the court hearing the case. An exception is the case of interim measures for proceedings which the court may initiate without an application (e.g. in cases concerning the care of minors, the admissibility of placing or keeping a person in a health care institution, legal capacity, guardianship, inheritance, declaring a person dead, determining whether a marriage is valid or not). In such cases the court will order the interim measures ex officio and no application needs to be made. There is no need to have legal representation when applying for interim measures to be executed or for evidence to be secured.
Interim measures are ordered by the court competent for the substantive proceedings. Securing evidence is carried out by the court that would be competent for the substantive proceedings or the court in whose jurisdiction the evidential material at risk is located.
Evidence may also be secured by means of a record drawn up by a public notary or bailiff, if the facts in question occurred in the presence of a notary or bailiff or if a notary or bailiff certifies the state of affairs. Performance of a decision ordering interim measures is carried out by the court enforcement officers (i.e. court employees) or may also be entrusted to a bailiff (i.e. a natural person who is assigned executory authority).
There is no charge for lodging an application to secure evidence. The charge for an application for interim measures is CZK 500, except where it is lodged in claims settlement proceedings, for which there is no charge. Some proceedings are completely free of court charges, i.e. there is no charge even for an application for interim measures. This applies, for instance, in cases concerning compensation for damages caused in the exercise of public authority as a result of an unlawful decision, a decision on custody, or improper official action; in cases concerning the commercial register, if they relate to the registration of a natural or legal person who is insolvent; or in insolvency proceedings, including compulsory composition, except for disputes arising from insolvency; and also, among other things, in the case of claims for compensation for health damage and compensation for damage to property arising in connection with health damage.
A court may, if necessary, order interim measures as a temporary arrangement between the parties or if there are fears that execution of the court's decision might be in jeopardy. The need for a temporary arrangement of the legal relations of the parties must be proven. Other circumstances significant for the ordering of interim measures must be at least certified (i.e. must prove probable having regard to the circumstances of the case).
To obtain an order for interim measures on the grounds of fear that execution of the court's decision is at risk, there must always be a decision or document constituting an enforcement order. Interim measures can be ordered only if the decision has not yet become enforceable or if there are serious reasons why the person entitled has so far been unable - temporarily - to claim fulfilment of the imposed obligation through enforcement of the decision. At the same time proof must be given to substantiate the fear that execution of the decision would be jeopardised (notably by the behaviour of a debtor).
Before proceedings on the merits of the case begin, evidence may be secured upon application, if there are fears that it might be impossible or very difficult to obtain such evidence later. Evidence will not be secured if it is beyond doubt that it will have no significance for the substantive proceedings. The court will also refuse an application to secure evidence if it is beyond doubt that an applicant is not in fact seeking to secure evidence but is pursuing some other purpose by his application (e.g. obtaining inaccessible information about the activities of other people by other means).
Interim measures imposed may, for example, order a party to pay alimony, to deposit a sum of money or an item of property with the court, not to dispose of certain property or rights, or to do something, refrain from doing something or allow something to be done. The measures may relate to any kind of item in the possession of the injured party.
As regards securing evidence, the evidence may be obtained by any means (hearing the parties or witnesses, having an expert opinion drawn up, conducting an examination, examining documents etc.).
A debtor may continue to dispose of his/her property even after interim measures are issued, but must act in accordance with those measures.
Anyone who frustrates or substantially impedes the execution of interim measures or the securing of evidence may be prosecuted for the criminal offence of obstructing the execution of an official decision. In addition, anyone who grossly impedes the progress of proceedings, in particular by failing to appear before court without good reason or disobeying a court's instructions, may be fined up to CZK 50 000 by the court. If an obligated party does not voluntarily comply with a decision on interim measures, the decision will be enforced by the court.
On request, anyone must inform the court free of charge of any fact that is of significance for the proceedings and the decision. At the written request of a court, a bank may report matters relating to clients who are subject to banking secrecy without seeking their agreement. The bank may freeze accounts only in execution of a decision on interim measures. These sanctions apply to third parties as well as debtors.
Interim measures remain in force until they expire or are lifted by the court. Interim measures expire if the applicant does not submit an application to commence proceedings within the time limit specified by the court; if the application in the substantive proceedings is rejected; if, where the application in the substantive proceedings has been granted, fifteen days have passed since the decision became enforceable; or once the interim measures have run for a certain period. Interim measures are lifted by the court if the grounds on which they were ordered no longer apply. In proceedings on interim measures the parties do not have to be heard if this does not delay the hearing of both parties in the main proceedings.
Securing evidence is carried out within the period laid down by the court or as soon as possible. Parties to the proceedings may be present when evidence is secured, but they do not have the right to be there if delay would pose a danger. Once proceedings on the merits of the case begin, the parties have the right to respond to the allegations in the evidence and to all evidence brought forward, and the parties may also be examined.
The parties to proceedings on interim measures may appeal against the decision. An appeal must be lodged with the court that issued the decision appealed, but the appeal is decided by the next higher courts, i.e. the regional or high courts. Appeals must be lodged within fifteen days of delivery of the written decision. An appeal made after the fifteen-day time limit is also regarded as having been lodged in due time if the appellant followed incorrect information from the court about the appeal procedure. If a court's decision does not contain information about the appeal procedure, the time limit for appeal, or the court where the appeal must be lodged, or if it incorrectly states that appeal is not admissible, an appeal may be lodged within three months of delivery of the decision.
An admissible appeal lodged in due time by an entitled person has the effect of preventing the decision from taking legal effect until the appeal court has ruled on the appeal. A resolution on interim measures is, however, enforceable (i.e. it must be followed) once the time limit for compliance expires, which begins to run from the time it is delivered, or is enforceable upon delivery if no obligation to be fulfilled is imposed. The court may decide that the ruling ordering the interim measure cannot be enforced until after the decision takes legal effect, provided that the nature of the interim measure does not prevent this or that doing so would not run counter to its purpose.Top
Last update: 22-05-2006