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Title:

Evidence in Civil Law – Slovakia



Author: Jana Vnuková



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Evidence in Civil Law – Slovakia





Jana Vnuková





Evidence in Civil Law – Slovakia



J

1

ANA VNUKOVÁ



ABSTRACT Like in all jurisdictions of the Member States of the European

Union the Slovak civil procedure is governed by the range of principles

that were developed in Europe since 19th century. The thesis summarizes

the main principles and their application by the judges when taking the

evidence in the course of civil proceedings. It is evident that the

observance of principles is vital not only in the drafting of legislation, but

also in its implementation and claiming rights of the parties before the

court. The combination of competing principles, such as free disposition

principle and the officiality principle, as well as the adversarial and

inquisitorial principles helps to achieve the situation in both positive law

and the decision making practice of the courts, where it is possible to

decide the civil cases in a fair and objective way enabling parties to use

procedural tools at their disposal. The thesis further elaborates on role of

principles in taking evidence at the court and it also describes the kinds

and means of evidence according to the Slovak Code of Civil Procedure.



KEYWORDS: • civil procedure • principles of civil procedure • taking of

evidence • kinds of evidence • frere assessment of evidence • burden of

proof





CORRESPONDENCE ADDRESS: Jana Vnuková, Ministry of Foreign and European Affairs; Unit of

Economic Policies at the Department of European Affairs; Hlboká cesta 2, 83336 Bratislava,

Slovakia; email: jana.vnukova@mzv.sk.



DOI 10.4335/978-961-6842-57-0

ISBN 978-961-6842-57-0 (epub)

© 2015 Institute for Local Self-Government and Public Procurement Maribor

Available online at http://books.lex-localis.press.

Jana Vnuková



Author Biography Jana Vnuková graduated in the Faculty of Law of the

Comenious University in Bratislava, Slovakia. In 1995-2014 she has been

working at the various positions in the Ministry of Justice of the Slovak

Republic, including deputy director general of International and European

Law Department and director of Human Rights Division. She has been

working mainly in the field of private international law and European

civil and family law. Currently she is working in the Slovak Ministry of

Foreign and European Affairs as the head of unit of Economic Policies in

the Department of European Affairs. She used to act as the chair of the

Committee for the Development of Human Rights of the Council of

Europe. She is the external lecturer of the Slovak Judicial Academy from

its establishment in 2004, she lectures in both domestic seminars for

judges and also in international fora on European law, mainly European

civil law and European family law, as well as private international law.

She has experience in providing consultancy from the Slovak experience

from the transformation of legal order after 1989 and the accession of the

country to the European Union. Her publication activities include articles

in domestic and foreign legal journals on arbitration proceedings,

international family law, and on private international law in Slovak legal

journals.





Foreword





General principles of civil procedure play the unique role not only in the application

and interpretation of the law and its individual legal concepts, but also in pursuing

the overarching goal of the civil procedure: to claim justified rights in a fair trial.

The adherence to the fundamental principles in proceedings represents the

guarantees of justice.



There have been tendencies in the European Union aimed at harmonising the

institutes of substantive civil law with the aim to contribute to the Single Market and

fundamental rights protection, however, as for the procedural law, such projects

have been even more complicated. Procedural law is even more linked to the

historical development and traditions of individual Member States of the EU. In

order to enable cross border recovery of civil claims by facilitating cross border

proceedings the principles of mutual recognition were taken as basis for further

works at the level of European Union. It is often necessary to take evidence in the

court of another Member States in the course of civil proceedings and that is why the

Regulation (EC) no. EC No 1206/2001 of 28th May 2001 on cooperation between

the courts of the Member States in the taking of evidence in civil or commercial

matters2 was adopted. It is based upon the principle that the evidence is taken by the

requested court in accordance with its own legal system.



That is why knowing the basic features about kinds of evidence and ways of taking

the evidence of various Member States became even more important. It helps to

decrease the refusals of requests and thus contributes to the speedy and efficient

cross border procedures.



General principles of the Slovak civil procedure are enshrined not only in the

domestic laws, mainly in the Constitution, in the Code of Civil Procedure and in the

Law on Judges, but also in the international instruments which have preference over

the domestic legislation.



The thesis explains the definition and functioning of fundamental principles of civil

procedure, such as principle of free disposition of parties in correlation with the

officiality principle, as well as the adversarial and inquisitorial principle. Slovak

civil procedure was traditionally based upon the inquisitorial principle. However,

after the change of the legal system after the year 1989 several features of

adversarial principle were introduced with the aim to speed the civil procedure and

to reduce the workload of judges. Among other principles guiding the Slovak civil



2 OJ L 174, 27.06.2001.

procedure ranks the principle of orality, directness, public hearing and the principle

of pre trial discovery which is also gaining its importance nowadays.



The thesis describes the various kinds of evidence admissible before the Slovak

courts. The principle of free assessment of evidence is the guiding principle in this

respect allowing the judge the large discretionary power in deciding which evidence

is convincing for the court and thus will have prevailing effect for ascertaining the

material truth in the respective trial. On the other hand, the free disposition of parties

principle balances the procedural obligation and shifts the burden of procedural

diligence towards parties.



The procedure of taking the individual kinds of evidence is also shortly outlined in

the thesis as it also has impacts on the final decision of the court.



The descriptive character of the thesis has the potential to involve and introduce the

reader into the overall mechanism of civil procedure and its core part – taking of

evidence before the Slovak courts.



The thesis notes the harmonizing effects has the jurisprudence of the European

Court of Human Rights on the main features of the civil procedure. The Court in its

ad hoc decisions on concrete cases forms general principles of civil procedure with

the overarching principle – right to fair trial as enshrined in article 6 of the

Convention.



The new codification of civil law in the Slovakia, which in the form of three codes –

Civil Contentious Code, Civil Non-contentious Code and Administrative Judicial

Code were adopted recently by the Parliament (in May 2015) and will enter into

force as of 1 July 2016, will also reflect the need for ideal of speedy and fair

protection of rights and interests of parties. While still reflecting the basic principle

of civil procedural law in Slovakia – the inquisitorial principle and the principle of

material truth in evidence taking, it further deepens the adversarial features aiming at

increasing the procedural activity of parties of the dispute and thus aims at

increasing the enforceability of law, which is one of the basic pillars of state

governed by the rule law.



Knowledge of basic principles of procedure of evidence taking in the various

Member States of the European Union is important due to the increased mobility and

subsequent constant rise of cross border cases in the Single market and it has the

potential to remove obstacles in cross border recovery of claims.



In this context I would like to highlight the importance of this project managed with

the financial support from the Civil Justice/Criminal Justice Programme of the

European Union by the team of Faculty of Law at the University in Maribor and

coordinated by Prof. Dr. Vesna Rijavec and Prof. Dr. Tomaž Keresteš.





Evidence in Civil Law – Slovakia

J. Vnuková





Contents





Part I .......................................................................................................... 1

1

Fundamental Principles of Civil Procedure ............................................... 1

1.1

Historical Background ............................................................................... 1

1.2

Principle of Free Disposition of the Parties and Officiality

Principle ..................................................................................................... 2

1.3

Adversarial and Inquisitorial Principle ...................................................... 5

1.4

Hearing of Both Parties Principle (audiatur et alter pars) –

Contradictory Principle .............................................................................. 7

1.5

Principle of Orality – Right to Oral Stage of Procedure, Principle

of Written Form ....................................................................................... 10

1.6

Principle of Directness ............................................................................. 11

1.7

Principle of Public Hearing ...................................................................... 12

1.8

Principle of Pre-Trial Discovery .............................................................. 13

1.9

Other General Principles .......................................................................... 14

2

General Principles of Evidence Taking ................................................... 17

2.1

Free Assessment of Evidence .................................................................. 17

2.2

Relevance of Material Truth .................................................................... 18

3

Evidence in General ................................................................................. 20

3.1

Means of Proof ........................................................................................ 20

4

General Rule on the Burden of Proof....................................................... 23

5

Written Evidence ..................................................................................... 26

5.1

The Concept of a Document .................................................................... 26

5.2

Documents for Which a Presumption of Correctness Exists ................... 27

6

Witnesses ................................................................................................. 28

6.1

Status of a Witness ................................................................................... 28

6.2

Right to Refuse to Testify ........................................................................ 28

6.3

Obtaining Evidence from Witnesses ........................................................ 30

7

Taking of Evidence .................................................................................. 32

7.1

Rejection of an Application to Obtain Evidence...................................... 32

7.2

The Hearing ............................................................................................. 33

7.3

Witnesses ................................................................................................. 34

7.4

Expert Witnesses ..................................................................................... 34

8

Costs and Language ................................................................................. 35

8.1

Costs ........................................................................................................ 35

8.2

Language and Translation ........................................................................ 37

9

Unlawful Evidence .................................................................................. 37

10

Taking of Evidence Regulation ............................................................... 38

11

Conclusions.............................................................................................. 39





Part II – Synoptical Presentation .............................................................. 41

1

Synoptic Tables ....................................................................................... 41

ii

Contents



1.1

Ordinary Civil Procedure Timeline According to the Slovak

Legal System ............................................................................................ 41

1.2

Comparison Table .................................................................................... 42





References ................................................................................................ 47





Evidence in Civil Law – Slovakia

J. Vnuková





Part I


1


Fundamental Principles of Civil Procedure



1.1

Historical Background



The guiding principles of Slovak civil procedural law steam from the fact, that the

Slovak civil law is based on the French Code Civile of 1804 and Austrian Algemeines

Burgerliches Gesetzbuch – ABGB of 1811 and thus ranks among the continental law

family. It is interesting to note in this context that the Slovak civil was also influenced

also by the Hungarian customary law, not only through its recodification in 1514 by

Stefan Verboczy in so called Tripartitum3, but also in the first half of 20th century. Until

1950 when both the new Civil Code and Code of Civil Procedure were adopted, in the

Czech part of the Czechoslovak Republic the ABGB and in the Slovak part the

Hungarian customary law applied.



The Code of Civil Procedure of 1950 ( zákon o konaní v občianskych právnych veciach)

integrated all kinds of proceedings, contentious and non-contentious into one code. This

was caused by the limitation of the influence of adversarial principle of procedural law

and its substitution by the principle of material truth. In the communist regime the court

proceedings was supposed to be not adversarial (contradictory), but both parties were to

pursue the common goal of finding the material truth.



After the fall of communist regime in 1989 the transformation of the civil law into the

conditions of free market economy started and as regards the civil procedural law, it is

interesting to note, that the adversarial principle is being strengthened. The reason for

this is the increased overload of courts and the need to strengthen the procedural

autonomy of parties with the aim to reduce the burden on the side of judges and higher

court officials. The answers to the questionnaire, which represents the basis for the

present thesis, were based on the current law – the Code of Civil Procedure ( Občiansky

súdny poriadok) of 1963, which is still in force, although with more than 80

amendments.



Recently – in May 21, 2015 the Parliament adopted the package of new codes, which

was commonly named as “recodification of civil procedural law”. The package is

composed of three codes: the Civil Contentious Code ( Civilný sporový poriadok), the



3 It was written in Latin language with the title: Tripartitum opus iuris consuetudinarii inclyti

Regni Hungariae partiumque adnexarum.

2





Part I


Civil Non-contentious Code ( Civilný mimorsporový poriadok) and Administrative

Judicial Code ( Správny súdny poriadok). By this formal distinction the legislator aims at

differentiation of three basic kinds of proceedings, which were formally integrated for

65 years in the Code of Civil Procedure. Especially in case of contentious proceedings,

the new Civil Contentious Code aims at strengthening the principle of concentration of

proceedings and increasing the elements of adversarial principle. The aim is to reduce

the burden on the side of courts which based on the concept of “active judge” have to be

active even if the parties did not cooperate, in order to find out the material truth in the

given dispute. The all three codes will enter into force as of July 1, 2016 thus allowing

for legis vacatio period of more than one year. Having in mind that this new legal

regulation will be applied by the courts soon, the present thesis takes it into account and

includes the solutions based especially on the Civil Contentious Code which is lex

generalis in relation to the Civil Non-contentious Code.



1.2

Principle of Free Disposition of the Parties and Officiality Principle



In Slovakia both free disposition of the parties principle (“dispozičná zásada”, which is

literary translated into English as “disposition principle”) and officiality principle

(“zásada oficiality”) apply. The free disposition principle is one of the most inherent

principles to the Slovak civil procedure. It is the expression of the “narrow functional

relationship between private substantive law and public civil procedural law. The aim of

civil procedure is that it serves the substantive law, it provides protection to the

subjective private law”4.



The free disposition of the parties principle is enshrined mainly in the possibility of the

parties to file the civil case within the court, as everyone has the right to ask for remedy

if his/her right is violated or endangered. This right includes the filing the action, its

revocation, its amendments, concluding the settlement with counterparty, filing the

appeal, filing the proposal for enforcement, etc. The Slovak Constitutional Court has

defined the free disposition of the parties principle in its case law5 as the civil –

procedural expression of the constitutional right for parties’ autonomy and “it

corresponds to the procedural act, containing the right of the party of the proceedings to

dispose willingly with both substantive and procedural rights in the civil proceedings.

The real danger of infringement of this constitutional right results also from the fact that

other subject would be in a position to compel the party of the proceedings to act in the

way not corresponding to his/her will. It is the eminent right of the party to decide what

procedural material will s/he submit to the court…”.



The central element in applying the disposition principle is the action ( actio, petition) as

a tool to claim any right of civil nature. The court shall not interfere with the filing of

the action in any way, thus if the petition is not clear or incomplete, the court invites the

party to amend or correct it6. In case the petition is not amended nor corrected, the court



4 MACUR, J.: Default judgment under § 114b of the CCP. In: Bulletin of Advocacy, 2/2002, p.

29.

5 Finding of the Constitutional Court of the Slovak Republic no. 43/95.

6 Article 43 of the Code of Civil Procedure.





Part I


3




shall not take it into account, because the disposition principle means that the court

cannot order the status, which was not wished by the parties. On the other hand, the fact

that the court cannot interfere with the petition is balanced with the low level of formal

requirements applied to the petition, as the court according to article 41 par. 2 of the

Civil Procedural Code considers as decisive article 43 of the Code of Civil Procedure

the content of the petition, and not its form. According to the Constitutional Court7 “Too

formal requirements in examining the acts of parties to the civil proceedings and

excessive pressure on amending such requirements to the procedural acts of the parties,

which are not based in the law, are beyond the law or do not have the fundamental

meaning for the protection of legality, and thus are not in accordance with the

constitutional principles of fair trial. The interpretation and use of article 43 of the Code

of Civil Procedure has to respect in its entirety the fundamental right of parties for their

judicial protection8 under the Constitution: “The interpretation and use of this provision

cannot limit the fundamental right for judicial protection without legal grounds.9”



Before the petition is filed, the action is entirely within the hands of party to the

proceedings, after the proceedings has commenced, the proposal/action can only be

amended with the consent of the court. The court decides by its resolution. The consent

of the defendant is not needed. The exemption from the wilful disposition of the parties

with the petition are cases when the proceedings can be initiated ex officio, i.e. upon the

own motion of the court, which are stipulated in the Code of Civil Procedure10: custody

of minors, admissibility of taking over or detention of person in health facility,

proceedings on legal capacity, custody matters, proceedings on declaration of a person

as deceased, succession proceedings, and in some other situations taxatively stipulated

by the law. The petition cannot be revoked in such cases by the parties.



The civil cases are adjudicated on the basis of article 46 par. 1 of the Slovak

Constitution (“Everyone may claim by the established legal procedure his right to an

independent and impartial court hearing and, in cases designated by law, to another

body of the Slovak Republic” and article 142 par. 1 (“The courts shall rule on civil and

criminal matters and also review the legitimacy of decisions made by bodies of public

administration and legality of decisions, measures or other actions of bodies of public

authority, if laid down by a law.”). The principles of civil judicial procedure is laid

down by the Code of Civil Procedure (“občiansky súdny poriadok”)11, including the

free disposition of parties principle.



The principle Iudex ne eat ultra petita partium applies in litigations. However, it does

not apply absolutely, as the court can go beyond the proposals12 of litigants and to

award more than requested, if the proceedings could be commenced ex offo or if the



7 Finding of the Constitutional Court no. IV.ÚS 1/02.

8 Article 46 par. 1 of the Slovak Constitution.

9 Award of the Slovak Constitutional Court no. IV. ÚS 1/02 of 26.9.2002.

10 Article 81 of the CCP.

11 The law no. 99/1963 Coll. as amended.

12 Under article 153 of the CCP.

4





Part I


legal provision stipulates directly the way of settlement of certain legal relationship

between the parties.



The principle of free disposition of the parties is one of the most characteristic

principles immanent to the Slovak civil procedure. It is anchored in the Constitution13

(“Everyone may do what is not prohibited by law…”) and stipulated in the Civil Code14

(“Everyone can seek the protection against infringement or menace of his/her right

before the competent authority. Such authority is the court, unless the law stipulates

otherwise.”). The Code of Civil Procedure stipulates that “Everyone has the right to

seek protection of his/her rights before the court.”15. The practical enforcement of this

right is realized by the procedural acts influencing the commencement, course and

finalisation of the proceedings. According to the Constitutional Court16 the disposition

principle corresponds to the civil expression of constitutional right of autonomy of

parties enshrined in “procedural act corresponding with the right of party of civil

proceedings to free disposition with his/her substantive and procedural rights in civil

proceedings. Real menace of infringement of this constitutional right steams also from

the fact, that other subject could be in a position to force the party to act in a way, which

is contrary to his/her will. It is the right exclusively immanent to the party to decide

what procedural material will s/he submit to the court.” The central notion in applying

the disposition principle is the action as the general mean to enforce any right of civil

law nature.



The court is not bound absolutely by the action of party. The court can exceed the

proposal of participants and to adjudicate more than was asked for by the action, if the

proceedings could be commenced ex offo or if the legal provision stipulates directly the

way of settlement of certain legal relationship between the parties.



The disposition principle means that parties can propose new evidence in essence

throughout the whole proceedings until the decision of the court is issued about the

finalisation of taking of evidence or until the decision in the matter is taken by the court

(if the matter is decided without oral hearing). The court waits for the parties to propose

all their evidence and subsequently declares formally that the stage of presenting the

evidence is closed. The parties are aware that they have to present the evidence until

that stage, otherwise the court decides on the basis of the evidence presented so far.



It is the right of the court to decide what evidence submitted by the parties will be

taken.17 The court can also in exceptional cases take evidence other than proposed by

the parties, if it considers necessary for the decision in the matter. In proceedings which

could be commenced ex offo as well as in other proceedings (proceedings to allow to

conclude marriage, to determine and deny paternity, about feasibility of adoption, cases



13 Article 2 par. 3 of the Slovak Constitution.

14 Article 4 of the CCP.

15 Article 3 of the CCP.

16 Award of the Constitutional Court no. PL ÚS 43/95.

17 Article 118 par. 2 of the CCP.





Part I


5




related to commercial register) the court is obliged to take other evidence necessary to

ascertain the facts of the case, even if parties do not propose such evidence18.



The new Civil Contentious Code upholds the free disposition principle as one of the

basic principles in its introductory part called “Basic Principles”19 which governs the

contentious proceedings.



1.3

Adversarial and Inquisitorial Principle



The adversarial principle is called the principle of contradiction (as derived from latin

contra dicere) and ranks among the general principles of civil procedure, although it is

not specifically stipulated in the Constitution nor in the Civil Procedure Code. The

adversarial principle means that each parties to the dispute has the possibility to

comment the claims of other party and the right to have his/her arguments heard20. It

also means that the judge cannot decide the case on the basis of what have been

ascertained out of proceedings21.



The inquisitorial principle applies in non-contentious proceedings, where the court is

obliged ex offo and disregarding from the parties of the case to ascertain the facts of the

cases in exhaustive manner. The court has to collect the evidence by its own initiative

and without waiting for the evidence presented from the parties. Of course, parties can

submit the evidence and the account is taken thereof by the court.



The adversarial principle is not explicitly defined in the Slovak legal system. However,

from this principle follows, that it is essential for the civil proceedings, that “the party of

the case shall have the possibility to consider, if and to what extent the written statement

of the defendant is relevant from the legal point of view, if it contains such factual and

legal reasons, which have to be addressed or expressed to; irrespectively from the real

effect of these on the decision of the court..”22



However, the application of the adversarial principle is not unlimited, especially in

cases, where this principle can be in contradiction with the necessity to ascertain the

facts of the case.



According to the Constitutional Court23 the adversarial principle is infringed in cases,

where one of the parties is denied of the possibility to comment the content and

authenticity of submissions related to the facts of the case.



18 Article 120 par. 2 of the CCP.

19 Article 7: “Court proceedings is commenced as a principle upon the application of the party to

the proceedings, and the subject of the proceedings is determined by the parties to the dispute by

the procedure as stipulated by the law.”

20 REPÍK, B.: Human rights in court proceedings. MANZ Bratislava, 1999, p. 161.

21 MACUR, J.: The Importance of statements in compliance of both parties for ascertaining the

facts of the case in civil proceedings. In: Legal Horizon 2/1997, p. 49.

22 Award of the Constitutional Court II. ÚS 168/2012-44.

23 Award of the Constitutional Court I. ÚS 49/01.

6





Part I


The inquisitorial principle is neither explicitly defined and it applies mostly, although

not exclusively (both parties have the possibility to comment all circumstances and

evidence submitted by the opposite party) in non-contentious proceedings, where the

court is obliged to take all evidence necessary to ascertain the facts of the case even if

the parties did not proposed them24. Non contentious proceedings include proceedings

to allow to conclude marriage, to determine and deny paternity, about feasibility of

adoption, cases related to commercial register, cases related to some issues concerning

companies and cooperatives.



The court can in exceptional cases take evidence in contentions proceedings other than

proposed by the parties, if they are necessary in order to decide the matter25.



In non-contentious proceedings the court is obliged to take all evidence necessary on its

own motion, even if it was not proposed by the parties.



The judge is the “guide” who directs the whole proceedings from the beginning, as the

court has also the extensive obligation to instruct the parties in order to assist the

smooth course of the proceedings, including the obligation to ask the applicant to

correct/amend the action, etc.



The judge26 (or presiding judge if the case is decided by the panel of judges) only

informs the parties of the preparation of the hearing in fact means that the judge

summarizes the dispute, summarizes the affirmations of both parties and outlines the

course of taking of evidence, but s/he does not prepare the list of references as such.



The judge informs the parties about the results of the preparation of the proceedings

after the hearing is open and the parties address the court.



The party can suggest the new evidence until the decision of the court about the closure

of evidence is taken, i.e. there is the possibility to submit the evidence throughout the

whole proceedings.



The new Civil Contentious Code strengthens the adversarial principle by giving the

priority to procedural activity of parties and highlighting their role to claim certain facts

and to give or suggest evidence to prove them upholding at the same time the principle

of equality of arms. The reason of giving the priority of adversarial over the inquisitorial

principle is the need to speed up the court proceedings.





24 Article 120 par. 2 of the CCP.

25 Article 120 par. 1 of the CCP.

26 Article 118 par. 1 of the CCP.





Part I


7




1.4

Hearing of Both Parties Principle (audiatur et alter pars) – Contradictory

Principle



Contradictory principle is one of the general principles applicable in the Slovak civil

proceedings27 and it is closely related to the principle of equality of arms of both parties

to the dispute. According to the Slovak Constitution everyone has to the right to deliver

his/her opinion on all pieces of evidence28 and the Code of Civil Procedure further

specifies this principle.



The contradictory principle means that nothing which could have the impact on the

decision of the court, cannot be excluded from the examining in the contradictory way

by both parties.



The principle aims at ensuring the situation according to which each party to the case

has to have the possibility not only to propose and bring forward the evidence, which it

considers necessary for the success of the claim, but also to get acquainted with each

evidence and statement proposed and brought forward by the other party and to

comment it. The parties are actively involved in the proceedings, since they determine

what facts have to be evidenced by the court and the activity of the judge/court has only

supplementary character and is limited to instructing, explaining and questioning

competences of the court. However, the contradictory principle is not unlimited,

especially in case when in the civil proceedings it conflicts with the need to determine

in a fair and true way the facts of the case. The court has to decide the case not only on

the basis of evidence submitted by the parties, but also on the basis of evidence it deems

necessary to take on its own motion.



The court continues with the proceedings also in cases where the parties are passive29.



The contradictory principle as such is not specifically defined in the Slovak legal

system, nonetheless according to the Slovak Constitution30 everyone has to the right to

deliver his/her opinion on all pieces of evidence and the elements of this principle are

further specified in the Code of Civil Procedure31: “The parties have the equal position

in the civil proceedings… The Court is obliged to ensure that they have equal

possibilities to claim their rights.”



The claimant is obliged together with the action bring forward also the evidence so that

the defendant is served with the proposal and evidence supporting the claim. On the

other hand, the defendant has also the right to comment the evidence of the claimant and

to suggest evidence to be taken in order to defend him/herself.





27 Case of the Constitutional Court no. I. ÚS 49/01 of 19.12.2001.

28 Article 48 of the Constitution.

29 Article 101 of the CCP.

30 Article 48 of the Constitution.

31 Article 18 of the CCP.

8





Part I


The parties have not only the right to submit the evidence, but they are obliged to

identify evidence in order to prove their claims/counterclaims. However, the court can

in exceptional cases take other evidence too, if they are necessary to decide the case.



The parties have the right to comment all the suggestions for evidence and the evidence

taken.32



The court shall instruct the parties that all evidence and facts of the case have to be

submitted until the decision on finalisation of evidence is taken.



The parties have the right to be present in taking of evidence and hearing of the parties,

including where evidence is taken by another court or out of courtroom. The court shall

inform parties about the results of taking of evidence in the hearing. The court can

decide that the evidence is taken repeatedly or amended.33



The contradictory principle applies in accordance with which the parties have the right,

but not the obligation to be present and to comment all the evidence taken. The court

can also take default judgment where all following circumstances are met: (i) the

defendant did not appear before the court in spite of s/he was summoned in time

including being instructed about the consequences of his/her failure to appear about the

court; (ii) the defendant did not commented the claim and evidence in written within 15

days from the delivery thereof, although s/he was instructed about consequences of

his/her failure to comment; (iii) the defendant did not duly and in time excused his/her

absence.



There are following preclusions to the possibility to render default judgement in cases

where: (i) the judgement would constitute the establishment, change or dissolution of

legal relationship between the participants, (ii) the relationship of international business

is involved, (iii) the participants cannot settle their dispute (by friendly settlement

approved by the court), (iv) the right for payment related to consumer contract is

involved and the debtor is consumer, if the contract includes the unfair terms.34



Violation of these rights constitute the reason for cancellation of the judgement by the

appellate court35.



The judgement can also be cancelled on the basis of the same reason (the party was

denied the possibility to act before the appellate court) claimed by the extraordinary

appeal filed within 1 month from the date when the appellate judgement became final.



The right of equal treatment is anchored in the Constitution (article 12: “Everyone is

free and equal in dignity and in rights.”). This principle is enshrined in the substantive



32 Article 123 of the CCP.

33 Article 122 of the CCP.

34 Article 153b of the CCP.

35 Article 221 of the CCP stipulates that if the party was denied the possibility to act before the

court, the appellate court shall cancel the judgement.





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law: in the Civil Code36“the parties in the civil proceedings are equal” as well as in

procedural law37: “parties to the civil proceedings are equal and the court shall ensure

the equal possibilities for enforcement of their rights”. This right involves also the right

to act before the court in one’s mother tongue as well as the right for free legal aid

aimed at removal of the material discrepancies between parties.



In essence the main sanction for the passivity of the party is the possibility for the court

to issue the default judgement. If the plaintiff is absent, the court would decide only on

the basis of his/her original proposal if it considers the facts of the case in accordance

with what was included in the proposal. The court can also stop the proceedings if the

incomplete proposal of the plaintiff is not amended further to the request of the court.

Due to the inactivity of plaintiff s/he can loose his/her case before the court.38



The failure to provide evidence requested by the court would result to the situation

where the party would loose his/her case.



According to the new Civil Contentious Code the parties are required to be procedurally

active and thus have the procedural responsibility with sanctions in case of their

passivity – in case of failure to make certain act, the party is precluded to do so after the

expiry of the deadline (so called procedural preclusion). Parties are obliged to ascertain

certain acts important for the decision to be taken and to prove them by the evidence

according to the orders and instructions of the court39. To ensure the equality of arms,

both parties have the right to get acquainted with statements, proposals and evidence of

other party and to comment them40. For example, if the party does not identify its legal

representative even in the deadline stipulated by the court, its procedural acts shall be

disregarded. The court shall instruct the party about such consequences. Just to

complement the whole picture, the new Civil Contentious Code enlarges the obligation

to be represented by the attorney according to the criterion ratio causae, i.e. in certain

matters the representation by the attorney is indispensable, which are following: cases

related to bankruptcy and restructuralization, competition and unfair competition

disputes, disputes related to commercial secrecy and intellectual property rights41. The

Slovak legal system also recognizes the right for free legal aid for persons not having

sufficient means to afford the attorney42.





36 Article 2 of the Civil Code.

37 Article 18 of the CCP.

38 Article 43 of the CCP.

39 Articles 7-8 of the Civil Contentious Code.

40 Article 9 of the Civil Contentious Code.

41 Article 87 of the new Civil Contentious Code.

42 Law on Free Legal Aid no. 327/2005 Coll.

10





Part I


1.5


Principle of Orality – Right to Oral Stage of Procedure, Principle of Written

Form



The principle of orality as such ranks among the general principles of civil procedure43.

This principle is specifically formulated in the Law on Judges and Assessors44, which in

its article 8 paragraph 1 states that “the proceedings is oral and public as a rule, unless

the law does not stipulate otherwise”.



The Civil Procedure Code stipulates that “the court shall order the oral hearing with the

presence of parties and other persons, if their presence is needed, unless the law

stipulates otherwise”45. The oral hearing is not necessary if it does not contradict with

public interest and if the case can be decided on the basis of written evidence and if

parties expressly gave up their right for oral hearing. The oral hearing is not ordered in

petty claims/small claims proceedings46, i.e. as a rule the court decides in written

proceedings unless it deems necessary to order oral hearing.



In principle the oral form is dominant, even the written evidence is taken by the court in

a hearing – the judge reads the document or summarizes its content47.



The principle of orality is dominant in the Slovak legal system. The oral hearing is

conducted as a rule and it is not necessary only if the written form does not contradict

with public interest48 and if the case can be decided on the basis of written evidence and

if parties expressly gave up their right for oral hearing49. The oral hearing is not ordered

in petty claims/small claims proceedings.



The new Civil Contentious Code also reflects the traditional principle of orality. It may

be, however, overriden – the law stipulates the cases where it is not possible to order

court hearing and the court can rely on the written form only. In this context the

procedural criterion of value of the claim ( valoris causae) is being introduced instead of

previously used term small claims. The court does not have to order hearing if the

subject matter concerns the legal assessment only, the ascertaining of the parties are not

disputable and the value of the claim does not exceed 2.000,- eur. The oral hearing does

not have to take place when the parties agree that hearing is not to be conducted. This

regulation reflects the fact that evidence has to be taken only when contradicting

ascertaining of the parties. The oral hearing does not have to be conducted in other

cases, such as default judgment, summary procedures (payment order), etc50. The

absence of oral hearing does not contradict the article 6 paragraph 1 of the European



43 MAZÁK, J.: Fundamental principles of civil procedural law. Iura Edition, Bratislava 2002, p.

34.

44 Law no. 335/1991 Coll. as amended.

45 Article 115 of the CCP.

46 Article 115a of the CCP.

47 Article 129 of the CCP.

48 Award of the Slovak Constitutional Court no. PL. ÚS 7/96 of 27.2.1997.

49 ZOULÍK, F.: Court and judiciary. C.H.BECK/SEVT, Prague 1995, p. 127.

50 Article 173 of the Civil Contentious Code.





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Convention for the Protection of Human Rights and Fundamental Freedoms as

enshrined in the case law by the European Court on Human Rights.51



1.6

Principle of Directness



The principle of directness is one of the fundamental principles of the proceedings52. It

is interconnected with the principle of orality53. It means that the court is in direct

contact with the parties. It is the strict requirement of the proceedings in order to ensure

that the court can directly and in person get acquainted with all evidence necessary to

decide the case, which at the same time excludes the situation where the court would

take into account evidence not taken in the proceedings54. The evidence does not have

to be taken again if the judge is replaced in the civil proceedings.



The principle of directness is not defined as such in the civil codes, however, the Civil

Procedure Code stipulates that “the court takes all the evidence at the hearing, unless the

requirements for written procedure are met”55. The party has the right to be present at

the proceedings.



The principle applies both to taking of evidence by the court as well as to the right of

the party to be present at the hearing. The exemption represents the possibility to decide

without oral hearing, so that the court would decide on the basis of written evidence

only. The written proceedings is only conducted and the court decides without oral

hearing if it does not contradict with public interest and if the case can be decided on the

basis of written evidence and if parties expressly gave up their right for oral hearing.

The oral hearing is not ordered in petty claims/small claims proceedings56.



Under certain specific circumstances,57 the appellate court can take additional evidence

suggested by the parties, if the court of first instance did not take this evidence although

the parties suggested it. It is exceptional, the evidence can only be taken when it was not

taken before the first instance court and the evidence concerns the competence of the

court, exclusion of judge, or it proves the failure of instructing the parties about the time

limit for submitting the evidence, or when the party was not able to submit the evidence

to the first instance court.



The appellate court is allowed to evaluate evidence, it can come to the conclusion that

the first instance court has wrongly established the facts of the case on the basis of the



51 See for example Martinie v. France; Fredin v. Sweden; Allan Jacobsson v. Sweden.

52 SVÁK, J.: Selected principles of performance of judiciary. Concordia Trading, Bratislava 1996,

p. 7.

53 BAJCURA, A. & coll.: Civil Procedural Law. Publishing unit of the Faculty of Law of the

Comenius University, Bratislava 1995, p. 32.

54 MACUR, J.: Interest of parties in explaining of the facts of the case in civil proceedings. In:

Bulletin of advocacy, 2/1999, p. 10-21.

55 Article 122 of the CCP.

56 Article 115a of the CCP.

57 Stipulated in article 205a of the CCP.

12





Part I


evidence taken by it (in this case the appellate court can also repeat taking the

evidence)58.



The principle of directness is explicitly defined in article 13 of the new Civil

Contentious Code59. The law stipulates in what cases the representation is obligatory

and in which cases the party has to be represented by the attorney. As stated above, they

are cases related to bankruptcy and restructuralization, competition and unfair

competition disputes, disputes related to commercial secrecy and intellectual property

rights, as well as cases involving cross border element60. The exemptions from the

principle of directness always have to be interpreted in a restrictive manner.



1.7

Principle of Public Hearing



This principle is one of the fundamental principles of the civil proceedings. It enables

citizens to be informed about the course of the proceedings and deciding by the court

and thus is the important tool of control of judiciary by the citizens.61 It means that

everyone is entitled to have his/her case tried at the public hearing. This principle is

embodied in the duty of the court to order and conduct public hearing, including

summoning of parties and other persons.



The principle of oral hearing also means that judgement has to be announced in public,

irrespectively of the fact, whether the public has been excluded for the whole

proceedings or for the part of it only. The failure to comply with the principle of oral

hearing would result in the possibility to cancel the decision in case.



It applies to one stage of the proceedings – hearing as it is embodied in the ordering of

hearing, summoning of parties and other persons. The application of the principle of

public hearing is ensured by the obligation of the court to publish the list of tried cases

on the notice board of the court. The principle is enshrined in the Constitution:

“Everyone has the right to have his case tried in public. The public can be excluded only

in cases stipulated by law.”62 According to article 116 of the CCP “the proceedings is

public with the exception of hearings held by notaries when performing their function as

court commissionnaires” (i.e. notaries trying the heritage proceedings in their capacity

performing the function of the court).



As for the exemptions to this principle, the public can be excluded63 for the whole

hearing or part of it, only if the public hearing would endanger the protection of secret



58 Article 213 of the CCP.

59 Article 13 par. 1: Parties act before the court in person, unless the law specifies otherwise. The

parties can be represented, however, the court can hear the party also in that case, if it is necessary

and possible.

60 Law on Private International Law no. 97/1963 Coll.

61 SVÁK, J.: Selected principles of performance of judiciary. Concordia Trading, Bratislava 1996,

p. 25.

62 In article 48 of the Constitution.

63 Award of the Slovak Constitutional Court no. II. ÚS 58/97 of 18.2.1998.





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data, trade secret, important interest of parties or morality. There is no specific age limit

introduced, however, if the morality is the reason for excluding the public, normally

persons under 18 years of age are not allowed to the hearing. Individual persons can be

banned from their participation at the hearing, if their presence could impact the dignity

and smooth course of hearing.64



The principle of public hearing is also reflected in article 14 of the new Civil

Contentious Code and it in fact takes over the existing regulation65, nonetheless it

supplements it with the rules for video recording and video or audio transmissions from

the court hearing, which can only be made with the consent of the court.66



1.8

Principle of Pre-Trial Discovery



The pre-trial discovery does not exist in the Slovak civil law at present.



Nonetheless, the pre-trial discovery is being introduced in the new Civil Contentious

Code for the first time in the Slovak legal system. This institute, which is completely

new to the civil law is introduced due to the fact, that one of the most frequent reasons

for delays in court proceedings is the repetitive conduct of court hearing, ordering of

supplementary and complicated expertś evidence, etc.. The new institute should thus

strengthen the principle of concentration of taking evidence. The court will during this

phase determine which of the claimed facts will be considered as significant and further

to that it will require the parties to define clearly which evidence are to be proposed.

The court will instruct the parties, that other statements and proposed evidence will not

be taken into account. Besides the speeding up of court proceedings the institute of pre-

trial discovery should also prevent the so called surprising court decisions.



According to article 164 of the new Civil Contentious Code the conduct of pre-trial

discovery is not obligatory67, however, the pre-trial discovery is expected this to be rule

rather than exemption.



The aim of the pre-trial discovery is to ascertain, whether the procedural requirements

are met and respectively, the measures to remedy the shortcomings can be taken by the

court in cooperation with the parties. During the pre-trial discovery the court should try

to seek the amicable solution of the dispute by mediation68. If the mediation failed, the

court shall impose the obligations upon the parties, that are necessary to pursue the aim

of the proceedings, especially as regards the preparation of the court hearing. The court

shall also determine which facts claimed by the parties are still disputable, which facts

are not disputable, as well as the court decides during this stage which evidence is to be

taken. As a rule the court will not take evidence of the facts that are claimed in



64 Article 116 of the CCP.

65 Article 172 of the Civil Contentious Code.

66 Par. 5 of the article 172of the Civil Contentious Code.

67 Article 164 par. 1: The court shall conduct pre-trial discovery before the first hearing, unless it

decides otherwise.

68 Article 166 par. 2 of the Civil Contentious Code.

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Part I


accordance by both parties, unless the court is of the view that there is reasonable

ground to believe that their claims do not correspond the truth. The court shall also

present its preliminary legal qualification of the dispute as well as the preliminary date

when the court hearing takes place69. This all serves the parties to be well prepared for

the main hearing. The court can also decide the case during the pre-trial stage, if it is

possible and serves its purpose70.



The parties are summoned before the court for the pre-trial discovery in the same way

and sticking to the same procedural requirements as in case of the court hearing. The

consequence of not appearing before the court when the plaintiff or defendant were

properly and timely summoned and without any serious reason did not appear is that the

court can decide by the default judgement. Nonetheless, the plaintiff and defendant that

are summoned have to be instructed to this effect when being summoned to the pre-trial

discovery71.



1.9

Other General Principles



The principle of directness (prima facie evidence taking), principle of arbitrary

order (applicable where there are no special periods prescribed and where the court

according to its conviction orders which act has to be taken and which evidence should

be taken and also the court establishes where the evidence is sufficient to decide the

case), principle of equal treatment with parties, the principle of ex officio conduct of

the proceedings once the proceedings are initiated by the parties, the principle of

concentration of the proceedings and principle of procedural economy are examples

of other principles governing the civil proceedings in Slovakia.



However, these principles as such are not defined in the CCP in the form of

introductory principles or definitions. The new Civil Contentious Code has remedied

this situation when legal principles were only abstracted from the legal science and thus

implemented by the judges, by introducing the introductory part called “Basic

Principles”. This part includes the definitions of the basic principles, which thus form

the framework of interpreting rules, in accordance of which the legal norms have to be

interpreted and applied. The order, in which the principles are listed and defined, does

not reflect their importance. All principles are equal.



The Civil Contentious Code is based on the following principles that are enshrined in

the introductory part of the Code:

- a general principle of prioritisation of courts as the authority of legal

protection72 meaning that unless the law confers this power to another authority

(administrative authorities, arbitration courts), all disputes concerning the

application of subjective rights in the field of substantive law are proceeded and

adjudicated by the court;



69 Article 167 par. 1 of the Civil Contentious Code.

70 Article 167 par. 2 of the Civil Contentious Code.

71 Article 168 of the Civil Contentious Code.

72 Introductory article 1 of the Civil Contentious Code.





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- principle of legal certainty or principle of legitimate expectations meaning

that the disputes are being adjudicated in accordance with the settled case law of

the Slovak Constitutional Court, European Court on Human Rights, Court of

Justice of the EU, etc. If the court departs from the settled case law, it has to give

specific reasons for that;

- principles of interpretation of the Civil Contentious Code in accordance with

the Constitution of the Slovak Republic, with public order, with fundamental

values upon which the Slovak legal system is based, with international treaties

binding on Slovakia having preference over the domestic legislation, with the

case law of the European Court on Human Rights, Court of Justice of the

European Union, including values protected by those courts73. The interpretation

in accordance with the objective and aim of the provision is given priority before

the interpretation in accordance with the grammar and syntax rules74; principle

of interpretation by analogy ( analogia legis and analogia iuris) 75;

- principle of denegation iustitiae76 enabling the judge to decide the dispute even

in cases where the explicit provision of the law to this end does not exist;

- principle of non-abusing the subjective rights77 according to which the court

can refuse to take concrete procedural acts representing the obvious misuse of

the law, moreover it can impose sanctions for such misuse;

- principle of equality of parties78 (also referred to as the principle of equality of

arms) with the focus on the new strengthened concept of adversarial proceedings.

It reflects the case law of the European Court on Human Rights which perceives

the principle of equality as the possibility to take part in the procedural acts of

another party and to comment it. The specific position of parties reflecting their

weaker social position and unfavourable health conditions should be taken into

account as well;

- free disposition principle which governs almost entirely the contentious

procedure is enshrined especially in the initiative of the parties to submit their

claims before the court, being thus the prerequisite for the whole proceedings to

commence79;

- adversarial and inquisitorial principle80 (principle of material truth) which

both are related to the principle of equality of arms and free disposition principle.

As stated above the new Civil Contentious Code gives priority to the procedural

activity of parties to the dispute, who are obliged to ascertain the facts and to

indicate evidence to prove them while both parties have the right to be

acquainted and to comment the ascertaining of the counterparty;



73 Introductory article 3 par. 1 of the Civil Contentious Code.

74 Introductory article 3 par. 2 of the Civil Contentious Code.

75 Introductory article 4 par. 1 of the Civil Contentious Code.

76 Introductory article 4 par. 2 of the Civil Contentious Code.

77 Introductory article 5 of the Civil Contentious Code.

78 Introductory article 6 of the Civil Contentious Code.

79 Introductory article 7 of the Civil Contentious Code.

80 Introductory article 8 and 9 of the Civil Contentious Code.

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Part I


- principle of arbitrary order is the one of the basic principles of the contentious

proceedings81 according to which it is up to the court to determine the course and

timeline of the proceedings with regard to the principle of economy in order to

pursue to objectives pursued by the law. The Civil Contentious Code as a rule

does not impose the procedural deadlines on the judge, it enables the judge to

concentrate certain procedural acts by the parties and to impose sanctions in case

of failure to take acts by the parties within the binding time limits specified by

the judge ( procedural preclusion) – in the form of not having the possibility to

make the act anymore after the expiry of such imposed binding time limit;

- principle of regarding the procedural acts of the parties in accordance with their

content and real will of the parties82, which represents the indicative rule for the

court;

- principle of orality83 imposed on the communication between parties and the

court is in some cases overrided by the modern means of communication,

especially in the cases of small claims;

- principle of directness84 applicable on the communication of the party with the

court, including the right to be present during taking of evidence by the court if

taken outside the hearing;

- principle of public control over judicial power85 implies the right to be present

at the hearing even without the necessity to prove the legal interest in the subject

matter of the dispute. The public can be excluded from the hearing only in cases

stipulated by the law (morality, secrecies, protection of privacy);

- principle of free assessment of evidence86 represents the fundamental principle

of evaluation of evidence by the court. None of the means of evidence has the

priority over others. This imposes the requirements for the proper justification of

the decisions of the court;

- principle of legality87 meaning the obligation of the judge to be bound by the

law while respecting the hierarchy of the legal norms, including the supremacy

of the EU law, priority of the international treaty binding on Slovakia and

promulgated according to the law. The principle of legality in the Civil

Contentious Code implies that the court shall not take into account facts and

evidence obtained illegally, however, in some cases this can be justified by

applying the overriding right;

- principle of procedural economy88 as one of the fundamental interpretation rule

of this Code represents the equivalent and supplements the right for legal and

judicial protection, which has to be legal and effective and thus speedy (justice

delayed is justice denied);



81 Introductory article 10 of the Civil Contentious Code.

82 Introductory article 11 of the Civil Contentious Code.

83 Introductory article 12 of the Civil Contentious Code.

84 Introductory article 13 of the Civil Contentious Code.

85 Introductory article 14 of the Civil Contentious Code.

86 Introductory article 15 of the Civil Contentious Code.

87 Introductory article 16 of the Civil Contentious Code.

88 Introductory article 17 of the Civil Contentious Code.





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- principle of free circulation of court decisions89 in the European Union

according to which the decisions of the foreign courts enjoy the same degree of

judicial protection as the domestic decisions.



2

General Principles of Evidence Taking



2.1

Free Assessment of Evidence



This principle ranks among the fundamental principles in the Slovak legal system. It

means that the court freely assesses the evidence, as the law does not stipulate any

degree of credibility of individual types of evidence nor it establishes the value of them.

The court evaluates the individual pieces of evidence in their entirety, but also in their

mutual correlation. The judge is not bound by any legal norms when assessing the

evidence90. “The court assesses the evidence according to its own conclusions, based on

experience and logic.”91



The court is not bound by the parties’ dispositions, it can take any evidence it deems

necessary for ascertaining the facts of the case. The court is obliged to assess only

evidence which, according to its conviction, lead to the fair decision in matter. The

evidence taken by the court has to be taken also with regard to the principle of equality

of parties and in accordance with requirements which do not favour any of parties92.

The court decides which from among the evidence suggested by the parties will be

taken93.



The obligation of the court to provide due reasoning of its decision, where it has to

explain upon which evidence it has based the decision and why it did not take other

evidence as suggested by the parties can be considered as the form of controlling

mechanism in this context.



The judge assesses the evidence irrespectively of whether it was suggested by the

parties or on his/her own motion. The judge is guided by the necessity to ascertain the

facts of the case and has to examine every piece of evidence s/he deems necessary in

order to find the material truth.The court cannot only base its decision on the statements

of parties or ascertained facts, but it has to base its decision on the results of taking of

evidence and facts ascertained by such evidence taking.



The judge assesses the evidence to the best of his/her belief, which does not, of course,

mean that the court assesses the evidence arbitrarily and contra legem. On the contrary,

the judge when assessing the evidence has to take into account all the circumstances of

the case and to evaluate it both individually and in their mutual correlations. The

evidence taking procedure has to be objective, transparent and reviewable.



89 Introductory article 18 of the Civil Contentious Code.

90 Article 132 of the CCP.

91 ZOULÍK, F.: Court and judiciary. C.H.BECK/SEVT, Prague 1995, p. 130.

92 Award of the Slovak Constitutional Court no. PL ÚS 25/01 of 7.11.2002.

93 Article 120 of the CCP.

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Part I


The judge assesses the evidence to the best of his/her belief while taking into account all

the circumstances of the case and evaluating the evidence both individually and in their

mutual correlations. The principle is defined as follows: “The evidence is assessed by

the court according to its considerations, each piece of evidence individually and also in

their mutual correlation while carefully taking into account of all facts ascertained

during the proceedings, including what has been stated by the parties.”94



The judge assesses the evidence to the best of his/her belief while taking into account all

the circumstances of the case and evaluating the evidence both individually and in their

mutual correlations. The principle is defined as follows: “The evidence is assessed by

the court according to its considerations, each piece of evidence individually and also in

their mutual correlation while carefully taking into account of all facts ascertained

during the proceedings, including what has been stated by the parties.”95



The principle of free assessment of evidence as the fundamental principle of evaluation

of evidence by the court is reflected also in the new Civil Contentious Code96, which

explicitly stipulates that none of the means of evidence has the stronger probative role

and thus does not have the priority over other means evidence. The fact that no

hierarchy of the means of evidence exists imposes the more strict requirements for the

proper justification of the decisions of the court, which has to give specific reasons why

certain evidence was considered as more convincing for the court.



2.2

Relevance of Material Truth



This principle ranks also among fundamental principles of civil proceedings in the

Slovak legal system, although it is only implicitly formulated. It supplements the

principle of free assessment of evidence. The principle of material truth requires the

pragmatic knowledge of probability of existence of certain facts, which are decisive for

deciding the case and which are so probable, that under the free, but due assessment of

the judge they are reaching the border of certainty. On the other hand, this principle,

which was promoted as one of the most fundamental principles in the socialistic legal

theory, has been subject to some revisions, in particular when strengthening the

adversarial principle in the civil proceedings.



There are limitations to this principle. The evidence has to be taken in such a way that

the duty of secrecy as defined under the special legal regulations, is kept. Hearing of

such witness can thus be made only if the competent authority or person, to the benefit

of which such duty is imposed, have withdrawn the duty of secrecy.97 Also the

confessional privilege can be the reason of refusal to testify.98 The testimony by witness

can also be denied, if such testimony can pose the risk of criminal prosecution to the



94 Article 132 of the CCP.

95 Article 132 of the CCP.

96 Introductory article 15 of the Civil Contentious Code.

97 Article 124 of the CCP.

98 Article 126 of the CCP.





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19




person involved or to his/her close persons; the court decides about the reasons to refuse

to testify.



There are no limitations for the court to select the evidence irrespectively of whether it

was suggested by the parties or by the court. The judge is guided by the necessity to

ascertain the facts of the case and has to examine every piece of evidence s/he deems

necessary in order to decide the case.



There is a general obligation of the parties to cooperate with the court established in the

Code of Civil Procedure99. There is also a duty to testify – every natural person is

obliged to appear before the court and to testify as a witness100. Article 131 of the CCP

establishes the duty of the parties to appear before the court and to testify. There is also

a duty to appear before the expert witness and to provide explanations and to submit

required items or give explanations101, or to undergo medical check, blood test, etc.102

Finally, there is also duty to provide documentary evidence to the court103 established in

the Code of Civil Procedure.



There is no limitation of the right to propose new facts and evidence (ius novorum). The

parties can propose the evidence throughout the whole proceedings – the court104

declares before the end of proceedings that the stage of taking of evidence is closed and

after that only it is not possible to submit the new evidence.



There are no special standards of material truth established in the law. The court has to

be convicted about the facts of the cases on the basis of examination of evidence taken.

“The evidence is assessed by the court according to its considerations, each piece of

evidence individually and also in their mutual correlation while carefully taking into

account of all facts ascertained during the proceedings, including what has been stated

by the parties.”105



The principle of directness (as described bellow) also ranks among the general

principles of evidence taking in the Slovak legal system and is also reflected in the new

Civil Contentious Code in its Introductory articles 8 and 9 in connection with the

inquisitorial principle. Both are related to the principle of equality of arms and free

disposition principle. As stated above the new Civil Contentious Code strengthens the

role of the procedural activity of parties, who are obliged to ascertain the facts and to

indicate evidence to prove them and it is up to the court to establish the facts of the case.





99 Article 6 of the CCP.

100 Article 126 of the CCP.

101 MACUR, J.: Explanation duty of party not having the burden of proof in civil proceedings. In:

Legal Horizon 5/2000, p. 200 and subs.

102 Article 127 of the CCP.

103 Article 128 and article 130 of the CCP.

104 According to article 118 of the CCP.

105 Article 132 of the CCP.

20





Part I


The relevance of material truth is even more visible in the context of non-contentious

proceedings. The new Civil Non-contentious Code reflects this principle being applied

in a larger manner together with the inquisitorial principle and principle of officiality

which are typical for these types of proceedings requiring a higher degree of protection

and thus larger interference of the judge.



3

Evidence in General



All kinds of evidence and methods of proof are equal, no proof is considered as stronger

than others. The only exception is “public document”, which is the document issued by

the courts or other state authorities within the framework of their competence, as well as

documents declared as public documents directly by law. The court considers its content

as proven.



There are no formal rules of evidence, only basic rules provided in the Code of Civil

Procedure.106 There are certain procedural rules governing taking of individual kinds of

evidence (e.g. instructing a witness before his/her examination, methods of summoning,

way of taking the evidence of expert witness, etc.). If the method of taking of evidence

is not stipulated in the Code of Civil Procedure, the court shall determine it. There is no

formal minimum standard of proof, it is within the discretion of the court to consider the

evidence individually and in their mutual correlations.



As stated above, this attitude of no prioritisation of the respective means of evidence is

also confirmed in the new Civil Contentious Code especially in its introductory article

15. The focus is thus given on the principle of free evaluation of evidence and the court

has to give fair and proper justification in its decisions and its argumentation in the

reasoning of decision has to be clear, convincing and logically undisputable. The

introductory principle 15 of the new Civil Contentious Code explicitly states that no

evidence has its legally prescribed evidentiary strength or probative role.



3.1

Means of Proof



The definition of evidence is provided in article 125 of the CCP “everything can serve

as evidence in order to ascertain the facts of the case, in particular hearing of witnesses,

report of expert witness, reports and statements of authorities, natural and legal persons,

documents, inspection of place/thing and hearing of parties”.107 The list of evidence is

not enumerative, it only gives the means of evidence by way of example. The means of

proof are: hearing of witnesses; reports of expert witnesses; reports and statements of

authorities, natural and legal persons, written documents; inspection of place or thing;

hearing of parties; anything that could serve the court as a mean to ascertain the facts of

the case.



There is no provision excluding certain means of evidence from the possible modes of

proof. Anything that could serve the court as a mean to establish the facts of the case



106 Articles 120 to 136 of the CCP.

107 Article 125 of the CCP.





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21




can be the evidence. The examination of parties is also considered as one of the means

of evidence. As regards parties, there are no special constraints for their capability to

testify. As for underage, there is no special limit in the Slovak law, a child can be heard

with regard to its age and mental maturity. In the practice of Slovak courts even child

under age of 2 years can be heard. Neither disability is regulated as the constraint for

testifying.



The party testimony can be requested by the parties or it can be ordered by the court

itself, if it considers this evidence necessary to ascertain the facts of the case. There are

no limits to the facts they can testify about. Only the secrecy, including professional

secrecy or secrecy as stipulated by the special laws can be considered as limitations.

Also the confessional privilege represents the limit of the obligation to testify.



The testimony by witness can be denied, if such testimony can pose the risk of criminal

prosecution to the person involved or to his/her close persons; the court decides about

the reasons to refuse to testify. The party can refuse to testify, if such testimony can

pose the risk of criminal prosecution to the person involved or to his/her close

persons.108 In this case it is possible both to refuse entirely the testimony or to refuse

answering certain questions. The court decides about the reasons to refuse to testify and

evaluates it.



If the refusal to testify is considered unlawful, it would have the result that the court

cannot establish the particular fact of the case which would have the effect on the final

decision as the decision of the court has to be based on the facts as established by the

evidence taken. If the party refuses to testify without any reason, the court can impose

fine and can order the party to appear before the court and provide testimony.109



There is no oath prescribed in the Slovak law. Nonetheless, the parties have to be

instructed by the judge that they have to tell the truth and not to conceal anything. The

penalty for perjury is the deprivation of liberty of 1 year to 5 years, although for

qualified offence the sanction is higher, under very special circumstances it can be up to

10 years110.



There are no special rules for evaluating evidence gathered trough parties testimony.

Their evidence is evaluated as other pieces of evidence. The adversarial principle and

the possibility to comment all the evidence submitted by the other party serves to the

court to ascertain duly the facts of the case on the basis of the evidence by the parties.



There is no special type of evidence prescribed for certain facts. However, in the

practice it is established that only public documents can prove certain facts (for example

certificate of marriage is accepted as the evidence submitted in the proposal for

divorce).





108 Article 126 of the CCP.

109 Article 53 of the CCP.

110 Article 345 of the Criminal Code.

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Part I


The existence of rights arising out of a cheque or bill of exchange cannot be proven by

any other means than presentation of such document, i.e. the cheque or bill of exchange

have to be submitted to the court.111



There is no degree of value of evidence; the only exemption is the public document

(document issued by the court or competent authority). There are no special methods of

proof prescribed as obligatory by law. However, there are certain types of procedures, in

principle proceedings related to personal status, proceedings involving minors and

divorce proceedings), where concrete factual status has to be proven by certain

document. In mentioned proceedings the existence of concluded marriage is proven.



Parties are obliged to deliver evidence both together with their claim/defence statement

or upon the request of the court. They are obliged upon the request of the court and

without delay to produce in written any facts relevant for the decision of the court.



The court can order any person, i.e. including parties to submit document or other

evidence.112



If a person who is to be examined before the court or expert witness does not appear

without justification, s/he can be brought before the court by the police (upon the

previous instruction that the failure to appear before the court can mean that the person

would be brought before court – article 52 of the CCP). The plaintiff can also be

forcibly brought before the court under same conditions.



The person can also be imposed fine for not producing or delivering evidence – up to

820 eur, and in case of gros deterioration of the proceedings before the court the fine

can be imposed in the amount up to 1.640 eur.113 The third person has a duty to deliver

evidence.



As for the judicial and administrative decisions and their value as evidence, these

decisions are considered as public documents and are considered as established fact,

they do not have to be proven. If it happens that they are proven to be false/not true the

court in civil proceedings is bound by the decision of the criminal court.



Documents issued by the courts or other competent state authorities, as well as

documents considered as public by virtue of special laws, confirm that it is the

regulation or declaration of the issuing authority, and, unless it is proved contrary, also

the verity of what is certified or confirmed by the document114.



The new Civil Contentious Code distinguishes between the term evidence and the term

means of evidence. As regards evidence, in addition to the existing definition (“all that

contribute to ascertaining of certain matter”) it introduces the concept of legally



111 Article 175 of the CCP.

112 Article 129 of the CCP.

113 Article 273a of the CCP.

114 Article 134 of the CCP.





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23




obtained evidence: “All that can contribute to ascertain certain matter and was obtained

legally from the means of evidence can be serve as the evidence.”115



At the same time the new Civil Contentious Code takes over the demonstrative

enumeration of the means evidence from the previous Civil Code with slight

adjustments as to the terminology (for example it replaces the term “hearing a

participant” by “hearing a party” and “expert evidence” instead of “expert opinion”. It

explicitly states that means of evidence are in particular hearing of a party, hearing of a

witness, document, expert explanation, expert evidence and inspection of a thing/place.

If the way of taking evidence is not stipulated, it shall be determined by the court116.



The new legal regulation changes the value of sanctions for not producing evidence – in

the amount up to 500,- eur and in case of repetitive failure the amount has been

increased up to 2.000,- eur. The court has not the possibility to forgive payment of the

sanction anymore, as this would mean that the educative effect of the sanction is not

fulfilled.



4

General Rule on the Burden of Proof



Parties are equal before the court, i.e. the claimant is the one who addresses the court

and thus has to prove his/her allegations. According to the Constitutional Court117 the

right to fair trail includes the principle of “equality of arms” in the civil proceedings,

which reflects the duty to bear the burden of proof, as well as the principle of “equality

of parties” in the civil proceedings reflected in creating the equal procedural conditions

and equal procedural status of subjects, whose rights and obligations are to be decided

upon by the court”. It means in principle it is the claimant who bears the burden of

proof, with certain exceptions.



The court has to ascertain the level of probability of existence of certain facts decisive

for evaluating the issue, that are so probable, that according to the free but due

consideration are close to the level of certainty. In the justification of the judgement the

court has to spell out what facts are considered as proven (and what are not). The

justification of the judgement has to be persuasive.



The well known facts or facts known to the court from its activity do not have to be

proven, as well as the legal regulations published in the Collection of Laws of the

Slovak Republic and in the Official Journal of the European Union do not have to be

proven118. Also the fact, for which the presumption is established by the law allowing

the evidence to prove the contrary, does not have to be proven by the court, unless the

contrary is ascertained in the proceedings. The court can also establish the facts on the

basis of the consensual allegations of both parties.





115 Article 183 of the Civil Contentious Code.

116 Article 183 par. 2 of the Civil Contentious Code.

117 Award of the Constitutional Court no. II ÚS 121/02.

118 Article 121 of the CCP.

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Part I


The defendant has the general duty to comment all claims and facts submitted by the

claimant – if not, under special conditions (the defendant does not appear in spite of

being duly summoned nor s/he asks for adjournment due to serious reasons) the

judgement in absentia may be issued.



The court can119 impose the defendant in written by its resolution to take a position in

written to the case and if s/he does not agree with the claim, to submit relevant facts and

evidence. The court prescribes the time limit to the defendant for such reaction.



The doctrine iura novit curia is known to the Slovak legal system. In accordance with it

the legal regulations published in the Collection of Laws of the Slovak Republic and in

the Official Journal of the European Union do not have to be proven120. It means that

only facts are being evidenced, as the legal regulations must be known for the court. As

for the foreign law, the parties need just to identify it, and the court has to find out the

content of it (through the Ministry of Justice)121.



If the facts claimed by a party and the proposed evidence are incomplete, the judge shall

invite the party to correct or amend his/her proposal to start proceedings within the

stipulated time limit (not less than 10 days)122. This duty of the court is views as the

balance to the adversarial principle guiding the civil proceedings.



The court has means to induce parties to elaborate on claims and express an opinion on

any factual or legal matter. The court can impose duty to this effect on parties by its

resolution, including the time limit. In case of failure to comply with this resolution the

court can impose repeatedly the monetary fine up to the amount of 1.640 eur (one sum

not exceeding 820 eur)123.



The summoned party which does not appear upon notification can be brought before the

court upon previous notification (that in case of failure to appear s/he can be brought by

the police before the court). This information about the possibility to induce parties to

that effect can be provided in writing, as well as during hearings parties can be

instructed to that effect by the judge.



The court can invite the parties to submit additional evidence, and also parties can do it

on their own motion, until the moment when the judgement is promulgated, i.e. until the

very last moment of the proceedings. In proceedings where no oral hearing is ordered,

the court before issuing the judgement formally closes the evidence by the resolution124.

The main consequence for cases when the party does not comply with the court’s

request for production of evidence is that the party is unable to prove his/her case and

can loose it. And also as stated above party may be compelled by the court to appear (by



119 Article 114 of the CCP.

120 Article 121 of the CCP.

121 Law no. 97/1963 Coll. on Private International and Procedural Law as amended.

122 Article 43 of the CCP.

123 Article 53 of the CCP.

124 Article 120 of the CCP.





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bringing the party by the police before the court) as well as by imposing the monetary

fines for failure to cooperate with the court in producing/bringing evidence.



The court can collect evidence on its own initiative in civil cases, in the proceedings

which can be initiated by the court on its own motion – so called non contentious

proceedings, which include proceedings to allow to conclude marriage, to determine

and deny paternity, about feasibility of adoption, cases related to commercial register,

cases related to some issues concerning companies and cooperatives, the court is

obliged to collect and take all the evidence. In the contentious proceedings the court can

also collect evidence on its own initiative in order to ascertain the material truth. The

reason is that in case of non-contentious proceedings there is the public interest in

ascertaining the facts of the case so that it can be decided, unlike in classical adversarial

(contentious) cases where it is in the parties’ interest to propose the evidence in the

support of his/her allegations.



If during the presentation of evidence new facts that were previously not raised by

parties become known, the court may allow additional submission of the evidence. The

court can allow additional evidence until the moment when the judgement is to be

promulgated in the case. The party is only obliged to suggest, i.e. to indicate the

evidence and the court can summon the third person to submit it or to appear before the

court.



The new Civil Contentious Code confirms the principle of equality of arms. As regards

burden of proof, it specifically states that in so called anti-discrimination cases the

burden of proof is shifted from the plaintiff to the defendant in order to strengthen the

protection of weaker party. In this type of cases the inquisitorial principle prevails, as it

is in case of non- contentious proceedings As it was stated above, in order to strengthen

the principle of arbitrary order and concentration of proceedings, the principle of

procedural activity of the parties to the dispute is being strengthened by introducing the

sanctions for the passive party in the form of loosing the possibility to make certain act

after the deadline imposed by the court. This is introduced with the aim to speed up

proceedings by shifting the procedural and evidential burden from the court towards the

parties to the dispute.



The procedural economy is mainly strengthened by the institute of pre-trial discovery,

whereby the time limits for submitting or indicating certain evidence are imposed from

the side of the judge. If the judge is persuaded about the facts of the case, s/he can

decide the case on the basis of evidence presented during the pre-trial discovery. This is

in line with the overarching principle of the new Civil Contentious Code – the principle

of arbitrary order.



The situation, when the court can also establish the facts on the basis of the consensual

allegations of both parties is being supplemented by introducing the requirement that

there is reasonable ground to believe that such consensual allegation does not

correspond the truth.



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Part I


A new element introduced into the new regulation is the explicit reference to the

possibility of the court to take evidence ex officio in connection with public register, if

the allegations of the parties are not in accordance with the reality125. Also without

being requested the court can take evidence in order to establish, whether the decision to

be taken will be enforceable, as well as to find the foreign law126.



The new Civil Contentious Code keeps the concept of so called editorial and

information obligation of the parties and third persons in relation to the court. Unlike

the current wording of the CCP imposing the obligation to provide written information

to the court to anyone for the compensation, the compensation is not introduced in the

new Civil Contentious Code as in reality it was difficult to estimate the value of

compensation to be paid.



The new Civil Contentious Code introduces the sanctions for passive party to the

dispute on the basis of the principle of procedural diligence of the parties – both to the

plaintiff and defendant who can both loose the case in case of failure to appear before

the court although being properly summoned.



As regards non-contentious proceedings, the inquisitorial principle and the principle of

material truth, as well as the activity of the judge remains the guiding principle. The

reason for this is the need to ensure the legal certainty and the protection of basic

values, such as the protection of family, status of a person, protection of best interest of

a minor, and the protection of values with the aim to preserve legal certainty.



5

Written Evidence



5.1

The Concept of a Document



The notion of document is defined in our legal system as “any final not empty

consequence of signs.”127 There is also specific definition for example in the

proceedings concerning the commercial register. Video and audio recording are not

considered as a document within the Slovak legal system. As for the electronic

documents, only the proposals to start proceedings sent electronically with secured

electronic signature are considered as documents. They are considered as equivalent to

any other form of proposal (made in written, orally documented in the official minutes).

However, an electronic version of a document is not considered to be equivalent to a

document in the current Code of Civil Procedure, which uses the term “deed” which

includes only written form of document.



The secured electronic signature is recognised in our legal system. The electronically

secured signature counts is defined as “the information attached or otherwise connected

with the electronic document, which should fulfil following requirements128:



125 Article 181 par. 2 of the Civil Contentious Code.

126 Article 181 par. 3 of the Civil Contentious Code.

127 Article 2 of the Law on electronic signature no. 215/2002 Coll.

128 Article 3 of the Law on electronic signature no. 215/2002 Coll.





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a) it cannot be effectively made without the knowledge of private key and

electronic document,

b) it is possible to verify on the basis of this information and public key belonging

to the private key used in order to produce it, that the electronic document, to

which it is attached or otherwise logically connected, is identical with the

electronic document used to its production,

c) it contains information identifying the author of the signature.



The author of the signature shall produce electronic signature of the electronic

document in such a way that s/he on the basis of his/her private key and electronic

document produces the new data fulfilling the requirements under letters a) to c).



The electronic signature has the same probative value as the original signature.



5.2

Documents for Which a Presumption of Correctness Exists



They are so called public documents. The “public document” is the document issued by

the courts or other state authorities within the framework of their competence, as well as

documents declared as public documents directly by law129. The court considers its

content as proven. The fact, that the content of those document is incorrect has to be

contested and its incorrectness proven in the proceedings. There is no formal difference

if the contents are contested or when the fact that it is the public document is contested.



There is no value of evidence established, i.e. every piece of evidence is evaluated by

the court independently and in mutual correlations irrespectively of the fact, whether it

is private or public. Private evidence has to be proven, i.e. the adversarial nature of

proceedings serves to ensure that the objective facts in the case are established by the

court. The Slovak legal system does not recognize the categorisation of private

evidence.



It is up to the court to find out the facts of the case after hearing both parties in a

contradictory way130. The contradictory character of the proceedings implies the

contesting the evidence proposed by one party by another and vice versa131. The law

draw distinction between the evidential (probative) value of public and private

documents in two aspects: in case of “public documents” (the documents issued by

courts and other public authorities) and also in case of report of expert witness. If the

party submits the report of expert witness, this has lower evidential value as when the

report is ordered by the court.



The written evidence is taken by reading it by the court at the hearing132. The court can

order any person to submit the written evidence before the court. The parties are obliged



129 Article 134 of the CCP.

130 ECtHR case Mantovanelli v. France of 18.3.1997.

131 ZOULÍK, F.: Equality of parties and professionality of civil proceedings. In: Bulletin of

advocacy 9/99, p. 125.

132 Article 129 of the CCP.

28





Part I


to


accompany

their

proposal

to

start

proceedings

with

the

written

evidence/documents133. During the proceedings, any person (including party) is obliged

to submit the document to the court, or to ask for the document from the competent

authority and to submit it to the court. The documents have to be produced in their

original version or in authenticated copy.



The new Civil Contentious Code keeps the concept of the written document as one of

the means of evidence with the differentiation between the public and private

documents having the consequence as to the necessity to prove it134.



6

Witnesses



6.1

Status of a Witness



Every natural person is obliged to appear before the court and to testify135. The court

summons the witnesses. The parties only identify the witness they want to testify. The

witness can only refuse to testify, if his/her testimony could cause the criminal

prosecution to him/herself or to his/her close persons. The close person is defined as the

relative in direct order, sibling and spouse. Other persons in family or other relationship

are considered as close persons if the injury caused to one person is perceived as the

injury by the other person too.



The person has to either appear in court or to excuse him/herself in written.



The failure to appear after being properly summoned by the court can be sanctioned by

the fine.



6.2

Right to Refuse to Testify



It is the discretion of the court to decide about the reasons of refusal to testify, i.e. if

they are justifiable or not. There isn’t formal possibility to contest it as the court does

not decide by formal decision (resolution). Nonetheless there is a possibility to

comment every piece of evidence in general. In general, there are no persons to be

deemed as unfit to be a witness. Even minor can testify, there is no limitation by age.

Under some circumstances priests can refuse to testify (secrecy of confession). Such

persons, if they have been summed, can claim their right not to testify before the court

who will decide, if the reason is justifiable.



The privilege against self-incrimination exist in the law. A person can only refuse to

testify, if his/her testimony could cause the criminal prosecution to him/herself or to

his/her close persons. It is the discretion of the court to decide about the reasons of

refusal to testify, i.e. if they are justifiable or not. This discretion is limited to assessing



133 Article 79 of the CCP.

134 Articles 200-201 of the Civil Contentious Code.

135 Article 126 of the CCP.





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29




the justifiable character of the reasons as they are stipulated in the law, so in practice the

court does not examine the content of the grounds.



The right to refuse to give evidence is not linked to certain persons/profession, but to

the content of secrecy. The evidence has to be taken in such a way that the secrecy

about the facts protected by the special laws or other secrecy established or recognised

by the state, is preserved136.



The right to refuse to testify does not apply absolutely, i.e. those persons can be released

from the secrecy by the authority which implied the secrecy. The Code of Civil

Procedure does not enumerate the kinds of secrets as they are regulated by separate

laws. Among them are business secrecy, state secrecy, military secrecy, health secrecy,

secrecy of advocate, journalist protecting his source.



For example, if a general manager of legal person has to be examined by the court not

as the witness but as the party to the proceedings, the consequence of refusal to testify

may be that the case will be lost. If s/he is called as a witness in case where his/her

company is not the party and recalls the business secrecy, the court would accept it. If

such a company is a holder of concession or public service, the evidence has to be taken

in such a way that the secrecy about the facts protected by the special laws or other

secrecy established or recognised by the state, is preserved. The fact, that the company

is the public law entity does not affect this issue.



If a state official refuses to testify about certain fact, claiming that it represents a state

secret., the court will address the state authority, which obliged its official by secrecy

obligation, to release him/her from this duty.



The journalist can be released from the duty to protect his/her source by this source or

by the court, i.e. s/he is covered by the privilege of the sources. The court in deciding

about the withdrawal of secrecy has to balance interests on both sides. The court asks

the respective entity for withdrawal, for example when withdrawing the secrecy of

notaries, the court asks Notarial Chamber, in case of legal counsels, the court asks Bar

Association for withdrawal. The court itself can only withdraw professional secrecy in

relation to expert witnesses. There is no appeal against the decision of the court not to

allow to testify in breach of secrecy.



The secrecy of confession is accepted directly by the law as the ground for refusal to

testify137.



The patient or the court can withdraw the obligation of secrecy in case of medical

doctor. Only the patient himself/herself can agree to provide details about her/his health

status. It is up to the court to balance both interests and to confirm/withdraw the right to

refuse to testify. There is no appeal against the decision of the court to allow/not to

allow to testify in breach of secrecy.



136 Article 124 of the CCP.

137 Article 126 of the CCP.

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Part I


An attorney at law (advocate) may also refuse to testify about certain facts regarding his

client. Only the client or the court can withdraw the obligation of secrecy. It is up to the

court to balance both interests and to confirm/withdraw the right to refuse to testify.

Again, there is no appeal against the decision of the court to allow/not to allow to testify

in breach of secrecy. As for other legal professions that can rely upon same privilege,

they are: notaries and huissiers de justice. Huissiers de justice are court bailiffs, i.e.self

employed legal profession responsible for enforcement of court decisions. Both notaries

and huissiers de justice have the duty to keep secrecy in relation to personal and

business information provided by their clients.



A witness cannot be forced to take an oath, since the Slovak legal order does not

recognise examining the witness under oath. This is not going to be change after July 1,

2016.



The new Civil Contentious Code in fact does not change the system of right to refuse to

testify, including the secrecies.



6.3

Obtaining Evidence from Witnesses



The judge has to establish the identity of the witness at the beginning of examining, as

well as all circumstances that can influence his/her credibility. The judge asks about the

relation of the witness to the parties to the case and to the dispute/subjects in question in

order to find out whether the witness is credible. In case the identity of the witness has

to remain secret, his/her affiliation to organisation/entity has to be established instead.



The judge has also the duty to instruct the witness about the importance of his/her

testimony, about his/her rights and as well as about the criminal consequences of the

false testimony. Subsequently the court examines the witness, i.e. invites him/her to

describe all circumstances of the case and facts. Then the judge asks the witness

questions in order to amend and clarify his/her testimony.



The delivering party has the right to ask the witness questions after the judge asked the

questions. The opposing party has the right to ask questions after the judge asked the

questions. As to the way of production of evidence, in principle it depends from the

delivering party which way it suggests. Once the party suggest the oral testimony of a

witness, the witness is summoned before the court and s/he may be instructed, that

failure to appear before the court can have the consequences of being brought before it.

The law does not prescribe any limits to the facts they can testify about, however, the

court questions the witness, so the court is responsible for the way the witness is

examined.



Penalty for the perjury is the sanction of deprivation of liberty of 1 year to 5 years,

although for qualified offence the sanction is higher, under very special circumstances it

can be up to 10 years138.



138 Article 345 of the Criminal Code.





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31




There are no special rules for evaluating special types of evidence as the disposition of

free assessment of testimony applies.



Cross examination is not known to our civil proceedings as a principle, but in practice

both parties can ask witnesses questions during their questioning.



As to the concept of questioning witness based on the historical tradition of the Slovak

civil procedural law, the new Civil Contentious Code introduces the new features,

which are related to the new concept of strictly adversarial procedure.



The concept of sworn affidavit is introduced for the first time into the Slovak civil law

as the written form of evidence instead of questioning a witness139. The purpose and

effectiveness have to be considered by the judge when ordering this type of evidence.

Nonetheless, the witness has to be accordingly instructed about the eventual criminal

consequences of perjury, In fact, this represents the difference from the so called written

statement, which has the character of private document without presuming obligation to

be instructed and thus without the potential threat of criminal consequences of perjury.



Both sworn affidavit and written statement are to be considered in accordance with the

principle of free assessment of evidence.



The new Civil Contentious Code also changes the system of ensuring the presence of

the witness at the proceedings in accordance with the strengthened adversarial principle

– the presence of the witness is to be ensured by the party and the courtś interference is

only subsidiary140. The party ensuring the presence of the witness has to inform the

court and the other party of the dispute in order to ensure the proper defence and

preparedness for the questioning of this witness in advance.



In order to address practical difficulties the new regulation specifies that in case it is not

possible to ensure the presence of the witness, neither by the party nor by the court, the

court shall decide that such witness shall not be examined141.



The principle of confrontation of witnesses is explicitly introduced in order to reflect the

adversarial principle. The possibility for witnesses to pose questions to each other is

introduced142. The structure of examining a witness in the structure ad generalia and ad

specialia is being kept by the new Civil Contentious Code143. As for the conduct of

examining of the witness, it is explicitly expected that the parties will pose questions,

and the court only on a subsidiary basis.





139 Article 192 of the Civil Contentious Code.

140 Article 193 of the Civil Contentious Code.

141 Article 194 of the Civil Contentious Code.

142 Article 195 par. 2 of the Civil Contentious Code.

143 Article 198 of the Civil Contentious Code.

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7


Taking of Evidence



There is no mandatory sequence in which evidence has to be taken. Anyone, who

possesses the evidence has to bring it to the court, i.e. the parties do not have to take the

evidence from the witnesses, just to identify it and the court will ask directly the person

identified to bring the evidence in court.



The court shall determine the deadline when allowing taking of evidence The deadline

has the procedural character. The order of the court has to contain the deadline, or the

exact date and the consequences of failure to comply with it. Following from the

principle that it is up to the court to establish the facts of the case, the fact, that the

evidence is not produced in time does not have the effects of “direct sanction”. If the

evidence is presented before the final phase of the proceedings, the court will still take it

into account. If the evidence is not produced at all, this would have the adverse effect on

the decision, as the court will not be able to rely on it. The court finally evaluates all the

evidence before issuing the judgement, the court decides about the evidence until all

pieces of evidence are taken.



The court can secure the evidence upon the proposal of the party (and ex officio in non-

contentious proceedings) before or during the main hearing by protective measure, for

example, it can ask for certain evidence to be brought before it at the very beginning of

proceedings, or it can ban the person to dispose of certain evidence item. To secure the

evidence the court has to take all measures to preserve it so that it can be taken in due

time. This is done in the stage before the proceedings starts.



The evidence can also be taken outside the proceedings, if it is not possible to bring the

subject to the court room. The parties have the right to be present.



7.1

Rejection of an Application to Obtain Evidence



In the stage before the proceedings the court collects applications to take evidence. The

court is free to decide which of them will be taken. The application to obtain evidence

can be lodged during the proceedings too, again the court is free to decide about it.

There are no special reasons stipulated by the law in order to reject the application to

obtain evidence, it is in the discretion of the court, which is only bound by the goal to

ascertain the true facts of the case.



The refusal must be based on the same reasons as the ground to refuse to testify, i.e. the

confession secrecy, state secrecy, military secrecy, etc. The court cannot reject an

application to take evidence, if the request was not submitted in time; the parties can

suggest evidence anytime during the proceedings. The application can be submitted

until the decision of the court about the closure of evidence is taken, i.e. until the very

end of the proceedings.



The parties are obliged (and it is in their interest) to identify the evidence they are

suggesting as well as possible, i.e. name, address, the claims, etc. In case they do not





Part I


33




know all whereabouts of the person identified as a witness, the court can use its capacity

to assist in identification. The court would not refuse to take the evidence if the parties

do not state the facts, the court would find all missing elements by itself.



In general, the court can use all facts that has learned in its activity. Especially the court

is bound by other court’s decision in criminal case having link with the current

proceedings. In the activity of the court means that facts established in proceedings but

also outside proceedings – for example facts established by other court that are relevant

in the matter. It is not necessary to take the evidence of the facts, which the court has

learned in its activity144. Such knowledge has the same value as the knowledge about

the laws published in the Collection of Laws or EU legislation published in the Official

Journal.



7.2

The Hearing



The evidence is as a matter of principle taken at the hearing and if it is taken outside the

hearing (in cases where no oral hearing is ordered), both parties have the right to be

present in taking the evidence. The principle of directness ranks among the fundamental

principles of the civil proceedings. Only the court can take evidence, the competent

court proceeding in case can ask another court to take the evidence, if it is more

appropriate due to distance, etc. The court can ask another court to take the evidence, if

it is more appropriate due to distance, etc.



The court can ask another court to take the evidence, if it is more appropriate from the

point of view of procedural economy. It is only in appeal proceedings, where the new

evidence can be taken (or the evidence suggested by the party and not taken by the court

in the first instance).



There is also the possibility to re-open the proceedings from serious reasons, among

them is that there are new evidence that cannot be taken without the fault of the party

(i.e. due to the facts that the party could not influence) or that can bring more favourable

decision for one party and could not be taken. There are no special rules regulating the

order of taking different types of evidence.



The parties have the right to be present in taking the evidence145. Nonetheless, it is their

right, not their obligation.



The Slovak legal system formally does not distinguish it, although the principle of

directness ranks among the fundamental principles of our civil procedure. The judge

evaluates all pieces of evidence, both direct and indirect. The indirect evidence, unless it

is excluded by the direct evidence taken, can assist in establishing the facts of the case

too. The video conference represents the direct type of evidence. The court can use the

video conference to conduct the hearing146. It would not be possible to do it abroad



144 Article 121 of the CCP.

145 Article 122 of the CCP.

146 Article 116 of the CCP.

34





Part I


without the consent of the local court. The evidence taking court proceeds as a rule

without the direct participation unless it is specifically requested by the court asking for

the evidence. The court can hold hearing using the videoconference or using other

communication means with the consent of the parties. However, the audio or video

recording is only possible with the consent of the court.



As for the conduct of examining of the witness, the new Civil Contentious Code

foresees that the court will pose questions to the witness only on a subsidiary basis.

Mainly the parties are to pose questions.



7.3

Witnesses



The court shall summon the witness as identified by the party. The court delivers the

summon with certificate and instructs the witness about the consequences of non-

appearance. The court delivers through post with the certificate of delivery. There is no

obligation for the parties to adduce the written statement before the testimony.



The witness does not swear an oath, the witness is only instructed about the importance

of his/her testimony, about his/her rights and as well as about the criminal consequences

of the false testimony/perjury. The witnesses are questioned individually. There is no

special preparation for witnesses. There is no difference whether the party is or is not

instructed by the party/representative, i.e. no special consequences are attributed.



As it was stated above, the new regulation introduces the possibility for the court to

refuse examining the witness who cannot be found. This procedural decision has to be

justified by the court. Also the adversarial character is being strengthened by the new

Civil Contentious Code by the fact that the questions are supposed to be posed by the

parties to the dispute as a principle, as well as by the fact that witnesses can pose

questions to each other.



7.4

Expert Witnesses



The judge is examining witness and posing questions to the expert147. The parties can

also pose questions to the expert witness. The same procedure is followed when experts

or when ordinary witnesses are questioned; in both cases the same procedure for

questioning is used, i.e. the court is examining both expert and witness.



The judge can summon any person to appear before the expert. The judge can also ask

any person or institution to cooperate with the expert, to provide explanations, to bear

certain acts (e.g. medical check, blood test) of the expert, to bring certain documents or

items to the expert, etc. The court can examine the expert, or can be satisfied only with

his/her written report. The court appoints the expert from the list of certified experts148.





147 Article 127 of the CCP.

148 Law no. 382/2004 Coll. on Expert Witnesses, Interpreters and Translators.





Part I


35




The party has the duty to cooperate with expert, to provide explanations, to bear certain

acts (e.g. medical check, blood test) of the expert, to bring certain documents or items to

the expert, etc. In principle if they do not agree, the consequence is that the fact is

viewed as proven (i.e. person refusing blood test is considered as father in paternity

dispute).



The opposing party has the same duties to cooperate with expert, to provide

explanations, to bear certain acts (e.g. medical check, blood test) of the expert, to bring

certain documents or items to the expert, etc. The opposing party has the right to

comment the expert witness report. It is up to the court: in principle the expert produces

written opinion, and upon the summoning of the court, s/he has to appear before the

court and to present his/her report.



The experts are selected from a list of registered experts, which is kept by the Ministry

of Justice. The same rules apply governing the taking of evidence from an expert

appointed by the court and an expert appointed by the parties. However, their probative

value is different: the report from the expert appointed by the court has the higher value

as the report produced by the expert appointed by the party. In general the parties can

present private expert report as evidence. In case of expert appointed by the party it is

that party, which can claim the reimbursement from the unsuccessful party; and in case

of expert witness appointed by the court the fees are part of the court fees. The decision

about the court fees and reimbursement is taken at the end of the proceedings together

with the judgement.



They have the right to propose another expert and the court will decide about their

request. The court is free to appoint several experts in the case, if it has doubts.



The written evidence is considered as one form of evidence and has not preference over

the testimony, i.e. the judge is not bound by the content of written evidence. As for the

written expert opinions, they are presented before the court by reading the whole or the

summary of it. In case of irregularities, the court can also summon the expert.



The new Civil Contentious Code for the first time regulates the expert opinion

submitted by the party without the expert being appointed by the court. Such solution

corresponds to the adversarial character of the proceedings based where the procedural

diligence of the parties implies that it is up to the parties to bear the result of the case.



8

Costs and Language



8.1

Costs



The term “legal expenses” includes the lawyers’ fees. The lawyers’ fees include the

award for the performance of lawyer in the form of tariff award (and not contractual

award), and the loss of profit and reimbursement of travel costs, if the lawyer has to

36





Part I


travel to the court. The remuneration for the lawyer is based on the tariff fees, and not

on the basis of contractual fees149.



Every party pays for costs of taking the evidence, which occurred on his/her account.

Joint costs are paid according to the proportion of participation at the matter and at the

proceedings. In heritage proceedings the heir shall bear the costs of notarial fees and

expenses (as the notary acts upon the authorisation of the court). For example the costs

of bringing the person who does not appear voluntarily upon being summoned by the

court are borne by this person. The party which suggests securing the evidence pays the

payment of guarantee.



The advance payment may be imposed by the court in relation to party, which has

suggested the evidence, it is up to the consideration of the court and depends on the

amount of taking the evidence expected (and not on the type of evidence). The costs of

taking the evidence which are not covered by the advance payment are covered by the

state. As for the rules regarding the taking of evidence ex officio, the costs are borne by

the state. The costs of parties already spent in proceedings that could be commenced ex

officio (non-contentious proceedings) are not refundable. As for heritage proceedings,

the costs of notary (who acts upon the authorization of the court) are borne by the

heir(s) unless the estate is in loss.



As for the traveling costs, the compensation for appearance of a witness before a court

includes the traveling costs and the lump sum for lost salary. The traveling costs is

calculated in terms of actual costs (travel ticket if public transport is used, or in terms of

kilometers, if the car is used) and the lost salary per day spent at court and traveling

to/from the court.



The requesting court pays:

- the real expenses that occurred to the expert,

- the compensation for the time of expert,

- remuneration of the expert.



The court pays for all costs of interpretation, as the right to communicate in the mother

tongue, or the language the party understand, is guaranteed and it is up to the court to

ensure the enjoyment of this right150. There are no special circumstances stipulated in

cases where the procedural expenses must be paid by the requesting court due to special

procedure or technology in cross border cases in accordance with provisions of

Regulation on Taking of Evidence151. In practice the advance payment could be asked



149 Decree of the Ministry of Justice no. 655/2004 Coll. on Remuneration and Compensation of

Lawyers for Providing of Legal Services.

150 Judgement of the Czechoslovak Supreme of 28.4.1984, 1 Cz 15/84 c. 21/1986; ECtHR case

Luedicke, Belkacem a Koc v.Federal Republic of Germany of 28.11.1978.

151 Council Regulation (EC) no. 1206/2001 of 28 May 2001 on cooperation between the courts of

the Member States in the taking of evidence in civil or commercial matters, OJ L 174,

27.06.2001.





Part I


37




for in case of evidence which foresees higher level of expenses, such as DNA tests. In

those cases the expert would ask for advance payment.



In most of domestic cases it happens more often that advance payment is asked (for

example if the advance payment is asked by the expert), in cross border cases this

happens rarely and in such cases it was reimbursed later.



The new Civil Contentious Code does not in fact change the existing regulation of the

costs, however, it principle it simplifies it.



8.2

Language and Translation



The courts have to use professional accredited interpreters. If both judge and the parties

understand the witness, the interpretation is not necessary. The langue is defined as the

“language to which the witness understands”. The accredited translators are responsible

for translating the documents. Before being accredited, they are sworn (i.e. not before

every case). In principle all documents have to be in the “language of the court”.



The official court interpreter is always appointed when a witness is questioned. If the

witness understands the language of the proceedings and renounces the interpretation, it

is not provided. The court shall bear the costs of interpretation.



The videoconference is rarely used in practice in Slovakia as not every court is equipped

by the VCF device. The interpreter is provided in order that both parties and the court

understand the questions.



9

Unlawful Evidence



The Slovak legal system does not recognize the distinction in civil and commercial

litigation between “illegally obtained evidence” and “illegal evidence”. There is any

normative solution establishing the illegality of the mean of obtaining evidence either.

The evidence is taken by the court and there is a presumption that the court does not act

contra legem. For example, the court would have to question a witness in contradiction

with secrecy (state secrecy, military secrecy). If the presented document was falsified or

if the police acted illegally when obtaining some information, this evidence cannot be

used and even the whole case can be reopened, including after proceedings was closed.

Accordingly, there is no legal concept or definition of “legal evidence” or “Illegal

evidence”. There is no normative solution establishing the illegality of evidence. As

stated above, the evidence is taken by the court and there is a presumption that the court

does not act contra legem. However, by means of example, the court would not take the

evidence which is recorded illegally.



The principle of legality in the Civil Contentious Code implies that the court shall not

take into account facts and evidence obtained illegally, however, in some cases this can

be justified by applying the overriding right, for example if the court takes into account

the electronic communication taken without the consent of the respective person, it has

38





Part I


to justify it by stating that the right for privacy is weaker in relation to the constitutional

right, which was allegedly infringed by the infringement of privacy. In practice such

constitutional right may be for example the discrimination.



10

Taking of Evidence Regulation



Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the

courts of the Member States in the taking of evidence in civil or commercial matters is

based upon the principle, that the evidence is taken by the requested court in accordance

with its procedures applicable for taking of evidence under national law. Taking the

evidence using the special procedures according to the article 10 of the Regulation can

be refused only by reason of major practical difficulties, not merely by reason of its

non-existence in the national law.



As for the notifications made in accordance with article 22, the competent courts to take

the evidence in Slovakia are first instance district courts. The central authority under

article 3 of the Regulation is the Ministry of Justice of the Slovak Republic, Division for

Private International Law and International Judicial Co-operation. As for the language

skills notified under article 3, they are Slovak, Czech, English, French, German.



As for applicable provisions for taking the evidence when the Slovak court is requested

court, they are included in the Code of Civil Procedure – “Občiansky súdny poriadok”

(Act no. 99/1963 Coll. as amended). Unfortunately, the official English translation of

the CCP is not available.



As for the treaties notified under article 21 paragraph 3 of the Regulation No

1206/2001, Slovakia has unilaterally notified bilateral treaties with 3 states as more

favourable: with the Czech Republic, Hungary and Poland (none of those countries have

notified those treaties). Therefore those arrangements do not apply (see manual to the

1206/2001 Regulation).



Treaty between the Slovak Republic and the Czech Republic on Mutual Legal

Assistance Provided by Judicial Authorities and the Regulation of Certain Legal

Relations in Civil and Criminal Matters with Final Protocol (Prague 29 October 1992).



Treaty between the Czechoslovak Socialist Republic and the Hungarian People’s

Republic on Mutual Legal Assistance and the Regulation of Legal Relations in Civil,

Family and Criminal Matters (Bratislava 28 March 1989).



Treaty between the Czechoslovak Socialist Republic and the Polish People’s Republic

on Manual 1206 /2001 Mutual Legal Assistance and the Regulation of Legal Relations

in Civil, Family, Labour and Criminal Matters (Warsaw 21 December 1987).





Part I


39




11

Conclusions



The principles in the civil procedure are enshrined in the introductory provisions of the

Slovak Code of Civil Procedure. They are important not only for legislator when

drafting the laws, but they also in the process of judicial interpretation of the law and its

practical application before the court. The overarching aim of principles applied in the

civil procedure is the principle of fairness of proceedings as deducted from the right to

fair trail guaranteed in article 6 of the European Convention for the Protection of

Human Rights as well as article 47 of the Charter of Fundamental Rights of the

European Union.



The role of principles is also to enable for achieving more quality judicial decisions in

the individual court proceedings. There are two major tendencies in the development of

interpretation and application of principles in the civil procedure: the approximation

with the European standards enshrined in the human rights protection framework and

the fair trial principle at one side and efforts aimed at making the civil procedure more

effective and expeditious, at the other side.



Traditionally in civil law countries, to which Slovakia ranks, the officiality principle has

been prevailing fixing the judge into the role of active master of the case being obliged

to ascertain the material truth by his/her own initiative after the application to

commence proceedings by one party was filed with the court. Through the last decades

and the urgent need to reduce the workload of judges and make the court proceedings

more swift and efficient the principle of free disposition of parties has been introduced

in a larger extent into the Slovak civil procedural law. Making the application of legal

institutes more swift and improving the enforceability of rights also ranks among aims

pursued by the application of principles of civil procedure. This is also achieved by

introducing further elements of adversarial rather than traditional inquisitorial principle.



Another principle, not to be omitted, is the principle of predictability, legal certainty and

improved access to justice. Natural and legal persons claiming their rights are in the

very centre of civil justice are. The adversarial principle is therefore interconnected with

the principle of equality of parties in the proceedings which is the pre-requisite of the

right to fair trail. The pre condition for the enjoyment of these rights in the course of

civil procedure is their knowledge – and the right to information, which should also be

equal for all parties. The principles of orality and directness of proceedings as well as

the principle of public hearing also help in achieving the goal of having the equal access

to information.



Taking of evidence as suggested by the parties and their evaluation in accordance with

the principle of principle of free assessment of evidence ranks among the core activities

of the judge. The principle of material truth and directness when taking the evidence at

the court are crucial for reaching the fair judgement at the end of the proceedings. In the

Slovak legal doctrine all means of evidence are equal and the judge evaluates them in

all their interconnections in order to verify the objective picture of the claim. Some

principles, such as directness and the principle of oral hearing have the tendency to

40





Part I


disappear from the second instance proceedings, which is justified by the interest in

speedy, effective and reasonable decision in terms of costs.



These goals are also pursued in the newly adopted Code of Contentious Proceedings,

Code of Non-Contentious Proceedings and Code of Administrative Proceedings, which

will enter into force as of 1st July 2016 and which introduces further measures aimed at

making the civil proceedings more effective and less consuming in terms of money and

time.





Evidence in Civil Law – Slovakia

Jana Vnuková





Part II – Synoptical Presentation





1

Synoptic Tables



1.1

Ordinary Civil Procedure Timeline According to the Slovak Legal System



Phase

Name of the Phase

Responsible

Duties of the Responsible

Rights (related only to

#



Subject

Subject (related only to

Evidence) of the

Name of the Phase

Evidence) and

Responsible Subject

in National

Consequences of their



Language

Breach

1.

Preliminary

Court

The court upon proposal

The court has to establish,

procedures

(or without proposal in ex

that the friendly

(“predbežné

officio proceedings) has to

settlement would not

konania”):

secure evidence and to

contradict the law.

a. settlement

take preliminary measures.

The court can order

(“zmier”)

Failure to do so can have

parties to bring the

b. preliminary

the consequence of

evidence, to pay certain

measures and

responsibility of concrete

necessary amount of

securing the

judge if it is ascertained in

money, to give certain

evidence

disciplinary proceedings

amount to the deposit of



that it was subjective fault.

the court, not to dispose

of certain things, to act or

to refrain from acting, not

to enter certain house or

dwelling, to refrain from

acting infringing or

threatening the

copyrights, to give child

to his parent, etc.

2.

Application (“návrh”

Claimant

Claimant has the duty to

Claimant can has the right

or “žaloba”)

indicate evidence

to ask the other party to



supporting his claim. If

produce evidence via

claimant fails to identify

court’s order.

the evidence, s/he may



loose the case as the court

will decide upon the facts

of the case established on

the basis of evidence

identified.

3.

Establishing the

Court

Court has to establish that

-

jurisdiction

it has jurisdiction on the

(“založenie

basis of the domicile

právomoci”)

address of natural person,

42

Part II – Synoptical Presentation



seat of company, address

of immovable property,

etc.

4.

Examining of

Court

Court can ask parties and

-

conditions for

third parties, institution for

proceedings

documents, statements

(“skúmanie

evidencing the conditions

podmienok

for proceedings

konania”)

(procedural capacity, etc.).

5.

Preparatory stage for

Court

The court delivers

The court can impose on

hearing (“príprava

application together with

defendant by resolution to

pojednávania”)

annexes to defendant and

produce statement within

instructs parties.

stipulated deadline. If this

The court without delay

is not complied with, the

delivers the statement of

court can issue default

defendant to the claimant.

judgement.

6.

Ordering the hearing

Court

The court summons the

-

(“nariadenie

parties.

pojednávania”)



7.

Hearing

Court

At the beginning of

The court can take

(“pojednávanie”)



hearing the court informs

evidence suggested by the

Parties

parties about evidence it

parties, but also any

intends to take.

evidence it deems

The court takes the

necessary in order to

evidence and evaluates it.

establish the facts of the

Parties are obliged to

case.

appear before the court

and produce evidence.

8.

Declaration of

Court

-

-

judgement

(“vyhlásenie

rozsudku”)



Part II – Synoptical Presentation

43



1.2

Comparison Table



1.2.1

Following table applies in case of Slovak court in a position of requesting

judge in a process of taking evidence under the regime of national law, bilateral treaties,

Hague convention on Taking of Evidence Abroad in Civil and Commercial Matters and

Taking of Evidence Regulation.



Legal

Regulation



Multilateral

Regulation



National Law

Bilateral Treaties

Treaties

1206/2001

Means

of Taking

Evidence

The national

The bilateral treaties

The request under

The court shall

judge has to use

include provisions on

the Hague Taking of

use the form(s)

Regulation

hearing a witness.

Evidence

provided by the

1206/2001,

Unlike bilateral treaties

Convention shall be

Regulation

Hague

with CZ, PL or HU,

sent using the form

1206/2001.

convention on

which include direct

and central authority

The special

Taking of

contacts – but cannot

channels.

procedure can

Hearing of

Evidence or

be used anymore, the

The special method

be required, if it

Witnesses by

bilateral treaty to

used bilateral treaties

or procedure may be

does not

Mutual

request hearing

(with Russian

requested, unless

contradict with

Legal

of witness. If

Federation, Republic

this is incompatible

the law of the

Assistance

there is no treaty

of Serbia) require the

with the internal law

requested state.

(Legal Aid)

basis, the

sending of request via

of the requested state

The same

provisions of

central authorities.

or it is impossible by

applies for

Private

Bilateral treaties do not

reason of its internal

coercive

International Act

allow for summoning

practice and

measures.

will apply.

of witness with the use

procedure or by



of coercive measures.

reason of practical

difficulties.

The national law

There are no

There is no

The regulation

Hearing of

enables hearing a

provisions to that

provision on

enables hearing

Witnesses by

witness using a

effect in bilateral

videoconference in

a witness using

Video-

videoconference.

treaties.

the Hague

a

conferencing

convention on taking

videoconference

with Direct

of evidence.

– the requesting

Asking of

court can ask

Questions

for it to be used.

There are no

There are no

The Hague

The regulation

provisions

provisions to that

convention does not

enables direct

specifically

effect in bilateral

include provision on

hearing a

Direct

allowing for

treaties. Nonetheless,

direct hearing;

witness by the

Hearing of

Slovak court to

the treaties include

judicial authority of

requesting

Witnesses by

direct hear a

provision that the

the requesting state

court.

Requesting

witness in

requested authority can

has the right to be

Court in

another country.

upon the request of

present at the

Requested

requesting country use

hearing.

Country

procedural provisions



of requesting country,

unless they are in

contradiction with its

legal system.

44

Part II – Synoptical Presentation





1.2.2

Table following example of Slovak court in a position of a requested court

judge in a process of taking evidence.



Legal

Regulation



Bilateral

Regulation



National Law

Multilateral Treaties

Treaties

1206/2001

Means

of Taking

Evidence

Hearing of

Bilateral treaties

The Hague

The regulation refers

witness in

refer to the

Convention on

to the national law in

accordance with

national law as to

Taking of Evidence

case of concrete ways

the Code of

the concrete ways

Abroad refers to

of hearing a witness.

Civil Procedure.

of hearing a

national procedural

If a special procedure

The parties have

witness, i.e.

law of the requested

is required, the

the right to be

witness will be

state, i.e. the

requested court shall

present during

heard in

provisions of the

comply with such a

hearing.

accordance with

Slovak Code of Civil

requirement,

the Code of Civil

Procedure shall apply.

unless this procedure

Procedure.

If a special method or

is incompatible with



procedure is

the law of the

Bilateral treaties

requested by the

performance of the

do not allow for

requesting state, the

taking of evidence or

Hearing of

summoning of

requested state

by reason of major

Witnesses by

witness with the

follows it, unless this

practical difficulties.

Mutual

use of coercive

is incompatible with



measures.

the internal law of the

The requested court

Legal

State of execution or

shall apply the

Assistance

is impossible of

appropriate coercive

(Legal Aid)

performance by

measures in the

reason of its internal

instances and to the

practice and

extent as are provided

procedure or by

for by the law of the

reason of practical

requested Member

difficulties.

State.

The requested

authority shall apply

the appropriate

measures of

compulsion in the

instances and to the

same extent as

provided by its

internal law.

Slovak national,

Bilateral treaties

Hague convention on

The requested Slovak

Hearing of

which would

do not include

taking of evidence

court could, in

Witnesses by

apply,

provision to that

does not regulate this

principle, comply

Video-

recognizes the

effect, however,

issue. Nonetheless, it

with such a

conferencing

possibility of

referring to

refers to national law

requirement as

with Direct

using the

national law

when taking the

allowed by the

Asking of

videoconference.

allow its use. Not

evidence, i.e. it could

Regulation, however

As for the

all Slovak courts

be used.

not Slovak courts are

Questions

practice,

are equipped by

The only practical

equipped with

Part II – Synoptical Presentation

45



unfortunately

the video

difficulty is that not

videoconference

not all courts are

conference

all Slovak courts are

device.

equipped with

device.

equipped by the video



the video

conference device.

conference

facility.

There are no

There are no

The Hague

The regulation

provisions to

provision to that

convention does not

enables direct hearing

Direct

that effect in the

effect in the

include provision on

a witness by the

Hearing of

national

bilateral treaties,

direct hearing;

requesting court, i.e.

Witnesses by

procedural law.

however, Slovak

judicial authority of

the Slovak court

court could allow

the requesting state

would allow it unless

Requesting

it on the basis of

has the right to be

it would not

Court in

reciprocity.

present at the hearing.

contradict public

Requested

However, on the basis

order.

Country

of reciprocity the

Slovak court could

allow for it.





46





Evidence in Civil Law – Slovakia

Jana Vnuková





References



Table of Cases



Award of the Constitutional Court of the Slovak Republic file no. II. ÚS 47/99 of 9th

June 1999 published in the Collection of Awards under no. 25/99

(http://portal.concourt.sk/Zbierka/1999/25_99s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. II. PL ÚS 43/95 of

10th September 1996 published in the Collection of Laws under 281/1996 volume

no.

95

(http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_

clanok1.asp?kotva=k1&skupina=1)

Award of the Constitutional Court of the Slovak Republic file no. I. ÚS 38/96 17th July

1996

published

in

the

Collection

of

Awards

under

no.

42/96

(http://portal.concourt.sk/Zbierka/1996/42_96s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. I. ÚS 59/00 of 20th

December 2001 published in the Collection of Awards under no. 57/01

(http://portal.concourt.sk/Zbierka/2001/57_01s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. I. ÚS 49/01 of 19th

December 2001 published in the Collection of Awards under no. 56/01

(http://portal.concourt.sk/Zbierka/2001/56_01s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. PL. ÚS 14/98 of 22nd

June 1999 published in the Collection of Laws under no. 166/1993, volume 73

(http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_clanok1.asp?k

otva=k1&skupina=1)

Award of the Constitutional Court of the Slovak Republic file no. PL. ÚS 7/96 of 27th

February 1997, published in the Collection of Laws under no. 77/1997, volume no.

34

(http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_clanok1.

asp?kotva=k1&skupina=1)

Award of the Constitutional Court of the Slovak Republic file no. II. ÚS 28/96 of 12th

May 1997 published in the Collection of Awards under no. 7/97

(http://portal.concourt.sk/Zbierka/1997/7_97s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. II. ÚS 58/97 of 18th

February 1998 published in the Collection of Awards under no. 21/98

(http://portal.concourt.sk/Zbierka/1998/21_98s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. II. ÚS 85/02 of 12th

March 2003 published in the Collection of Awards under no. 10/2003

(http://portal.concourt.sk/Zbierka/2003/10_03s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. II. ÚS 40/97 of 8th

October 1997 published in the Collection of Awards under no. 17/97

(http://portal.concourt.sk/Zbierka/1997/17_97s.pdf)

48

References



Award of the Constitutional Court of the Slovak Republic file no. II. ÚS 26/95 of 25th

October 1995 published in the Collection of Awards under no. 7/95

(http://portal.concourt.sk/Zbierka/1995/7_95s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. PL. ÚS 43/95 of 10th

September 1996 published in the Collection of Awards under no. 281/1996, volume

no.

95

(http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_

clanok1.asp?kotva=k1&skupina=1)

Award of the Constitutional Court of the Slovak Republic file no. IV. ÚS 1/02 of 26th

September 2002 published in the Collection of Awards under no. 85/02

(http://portal.concourt.sk/Zbierka/2002/85_02s.pdf)

Award of the Constitutional Court of the Slovak Republic file no. PL ÚS 25/01 of 7th

November 2002 published in the Collection of Laws under no. 620/2002, volume

no.

243

(http://jaspi.justice.gov.sk/jaspiw1/htm_zak/jaspiw_mini_zak_zobraz_

clanok1.asp?kotva=k1&skupina=1)

Award of the Constitutional Court of the Slovak Republic file no. ÚS 75/96 of 16th

April 1997 published in the Collection of Awards under no. 58/97

(http://portal.concourt.sk/Zbierka/1997/5_97s.pdf)

Judgment of the European Court of Human Rights in case of Dombo Beheer B.V. v.

Netherlands

of

27th

October

1993

(http://hudoc.echr.coe.int/sites/eng/

Pages/search.aspx#{"fulltext":["Dombo

Beheer

B.V.

v.

Netherlands"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"ite

mid":["001-57850"]})

Judgment of the European Court of Human Rights in case of Feldbrugge v. Netherlands

of

29th

May

1986

(http://hudoc.echr.coe.int/sites/eng/Pages/

search.aspx#{"fulltext":["Feldbrugge"],"documentcollectionid2":["GRANDCHAM

BER","CHAMBER"],"itemid":["001-57486"]})

Judgment of the European Court of Human Rights in case of Luedicke, Belkacem and

Koc v. Germany of 28th November 1978 (http://hudoc.echr.coe.int/sites/eng/Pages/

search.aspx#{"fulltext":["Luedicke","Belkacem

and

Koc

v.

Germany"],

"documentcollectionid2":["GRANDCHAMBER","CHAMBER"],"itemid":["001-

57530"]})

Judgment of the European Court of Human Rights in case of Mantovanelli v. France of

18th

March

1997

(http://hudoc.echr.coe.int/sites/eng/Pages/

search.aspx#{"fulltext":["Mantovanelli"],"documentcollectionid2":["GRANDCHA

MBER","CHAMBER"],"itemid":["001-58023"]})

Judgment of the Supreme Court of the Slovak Republic of 31st August 1994, 5 Cdo

66/94 published under no. 31/1995

Resolution of the Constitutional Court of the Slovak Republic file no. I. ÚS 87/97 of 2nd

December 1997 published in the Collection of Awards under no. 56/97

(http://portal.concourt.sk/Zbierka/1997/56_97s.pdf)

Resolution of the Constitutional Court of the Slovak Republic file no. I. ÚS 64/97 of 8th

October

1997

published

in

the

Collection

of

Awards

no.

50/97

(http://portal.concourt.sk/Zbierka/1997/50_97s.pdf)

Resolution of the Supreme Court of the Slovak Republic of 26th March 1992, 4 Cdo

6/92



References

49



Bibliography



BAJCURA, A. & coll.: Civil Procedural Law. Publishing unit of the Faculty of Law of

the Comenius University, Bratislava 1995, p. 313

BOGUSZAK, J.: To the theory of law making (values, norms, legal principles). In:

Faculty of Law UK 1348 – 1998 jubileum volume, Prague 1998, p. 326

BOGUSZAK, J.: Notion, kinds and importance of legal principles. In: Legal Horiozon

no. 3/2003, p. 241-246

BUREŠ, J., DRÁPAL, L., MAZANEC, M.: Civil Procedural Order. Commentary, 2nd

edition, Prague, p. 1170

CAPEK, J.: European Court and European Commission for Human Rights. Linde,

Prague 1995, p. 642

KÜHN, Z.: To the role of legal principles in the case law. In: SEP 5-6 2001, p. 62-69

MACUR, J.: Civil procedure and the principle of hearing. In: Bulletin of advocacy,

1/1997, p. 13-23

MACUR, J.: Evaluation of the pleadings of parties represented by lawyer in civil

proceedings. In: Bulletin of advocacy 4/96, p. 4-10

MACUR, J.: Default judgment under § 114b of the CCP. In: Bulletin of Advocacy,

2/2002, p. 28-36

MACUR, J.: Judiciary and judicial law. University of J.E. Purkyne, Brno 1988, p. 154

MACUR, J.: Explanation duty of party not having the burden of proof in civil

proceedings. In: Legal Horizon 5/2000, p. 200-204

MACUR, J.: The Importance of statements in compliance of both parties for

ascertaining the facts of the case in civil proceedings. In: Legal Horizon 2/1997, p.

49-53

MACUR, J.: Interest of parties in explaining of the facts of the case in civil

proceedings. In: Bulletin of advocacy, 2/1999, p. 10-21

MACUR, J.: Fundamental theoretical issues of legislative concept of civil proceedings.

In: Bulletin of advocacy 9/1998, p. 6-17

MACUR, J.: Principle of hearing in civil proceedings. Masaryk University, Brno 1997,

p. 233

MAZÁK, J.: Fundamental principles of civil procedural law. Iura Edition, Bratislava

2002, p. 638

NESROVNAL, V.: Problems of principle of material truth. In: Judicial revue, 55, 2003,

no. 12, p. 1141-1143

PRUSÁK, J.: Principles in the law. In: Legal Horizon 3/1997, p. 221-227

PRUSÁK, J.: Theory of Law. VO PF UK, Bratislava 1995, p. 308

REPÍK, B.: Human rights in court proceedings. MANZ Bratislava, 1999, p. 256

RUBEŠ, J.: On some ethic principles of everyday work of judge and lawyer. In:

Bulletin of advocacy, 11-12/2003, p. 19-30

SVÁK, J.: Selected principles of performance of judiciary. Concordia Trading,

Bratislava 1996, p. 95

TELEC, I.: Legal principles and some other issues. In: Lawyer 6/2002, p. 621-633

VACULÍKOVÁ, N.: Application of law and legal principles. In: Legal Horizon 3/2003,

p. 273-281

WINTEROVÁ, A. & coll.: Civil Procedural Law. Linde, Prague 1999, p. 663

50

References



ZOULÍK, F.: Equality of parties and professionality of civil proceedings. In: Bulletin of

advocacy 9/99, p. 7-20

ZOULÍK, F.: Court and judiciary. C.H.BECK/SEVT, Prague 1995, p. 268

Collective of authors: Taking of evidence in civil and criminal proceedings, Judicial

Academy, Pezinok 2012, p. 71

Selection of judgments of the European Court of Human Rights. Right to fair

proceedings. Information Office of the Council of Europe, Bratislava 2001, p. 244