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Title:

Evidence in Civil Law – Latvia



Authors: Jānis Rozenfelds, Daina Ose, Martins Osis



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Evidence in Civil Law – Latvia





Jānis Rozenfelds

Daina Ose

Martins Osis





Evidence in Civil Law – Latvia



JĀNIS R

1

OZENFELDS, DAINA OSE, MARTINS OSIS



ABSTRACT The national report of civil procedure in Latvia is based on

review of the Latvian Civil Procedure Law, court practice, feedback by

the Ministry of Justice on cooperation with the EU states as well as with

third countries in various matters of jurisdiction as well as on legal

science.



Civil procedure includes all legal principles like disposition, right to be

present and to be heard, competition of parties in gaining all necessary

evidence and similar concepts to be found in almost every modern civil

procedure system.



However, there are certain specific features due to which Latvian process

stands out. For instance, there is still a system of legal presumptions

which apparently is inherited from Roman law, yet still prescribed by the

Latvian Civil law (Civil code). Also certain degree of formal attitude

remains as a characteristic feature of the Latvian civil procedure.



KEYWORDS: • principle of free disposition • adversarial principle •

hearing of both parties ( audiatur et altera pars) • public hearing • free

assessment of evidence • relevance of material truth • means of proof •

legal presumptions • burden of proof • iura novit curia • evidence •

balance of probability





CORRESPONDENCE ADDRESS: Jānis Rozenfelds, Ph.D., Professor, University of Latvia, Faculty of

Law, Raiņa bulvāris 19, Riga, LV-1586, Republic of Latvia, email: janis.rozenfelds@lu.lv. Daina

Ose, Ph.D., Assistant Professor, University of Latvia, Faculty of Law, Raiņa bulvāris 19, Riga,

LV-1586, Republic of Latvia, email: daina.ose@lu.lv. Martins Osis, Assistant, University of

Latvia, Faculty of Law, Raiņa bulvāris 19, Riga, LV-1586, Republic of Latvia, email:

martins.osis@lu.lv.



DOI 10.4335/978-961-6842-53-2

ISBN 978-961-6842-53-2 (epub)

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

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

Jānis Rozenfelds, Daina Ose, Martins Osis



Authors Biography Prof. Jānis Rozenfelds is a head of the Civil law

sciences department of the University of Latvia, also a head of the

Promotion Council of the Legal sciences branches (the sub-branches of

civil law, law theory and history) of the University of Latvia, a member of

the Council of Professors of the Legal sciences of the University of

Latvia. Jānis Rozenfelds has the following academic degrees: Cand.

Sc.(1980), Dr.iur.(1993), Doc. (1993), Assoc. Prof. (1999), Prof. (2004).

Prof. Jānis Rozenfelds is an attorney at law and has been a member of the

Bar Association of Latvia since 1992. Prof. Jānis Rozenfelds is also a

member of the International Bar Association; Arbitrator of the Latvian

International Arbitration Court; a member of the Arbitration Court of the

Association of Commercial Banks of Latvia and of the National

Arbitration and Mediation International Division (Panel of International

Arbitrators). Prof. Jānis Rozenfelds is the leading partner and founder of

the law office “Rozenfelds & Partners” since 2000. He is an author of

various scientific articles, text books and monographs.



Daina Ose obtained her PhD degree in Law (Dr.iur.) at the University of

Latvia in 2013. She also has Master’s degree in Economics (major) and

Business Administration (minor) acquired at the Riga Technical

University in 1995. Her major spheres of interest are in civil law, civil

proceedings and in topical problems of civil procedure. Ms. Ose has more

than 30 publications. The Constitutional Court of the Republic of Latvia

has several times applied for the opinion of Ms. Ose in the spheres of her

professional qualification. For more than eight years Ms. Ose is a member

of the working group for the civil procedure law in the Ministry of Justice

of the Republic of Latvia. Ms. Ose is a legal adviser in the Legal Bureau

of the Saeima (the Parliament) of the Republic of Latvia. Ms. Ose is a

lecturer and assistant professor at the Faculty of Law of the University of

Latvia since 1996. She is also a contractual lecturer at the Faculty of

Engineering and Economics at the Riga Technical University since 1994.



Martins Osis obtained his Master's degree in Law at the University of

Latvia in 2008. Since 2011 he is studying in the Doctoral program of the

University of Latvia. Currently Mr. Osis is working on his PhD thesis.

His scientific interests mostly focus on civil procedure, property law and

contract law. Among other publications, Mr. Osis is also a co-author of

the scientifically practical commentary to the Latvian Civil Procedure

Law. The Constitutional Court of the Republic of Latvia has repeatedly

asked for the opinion of Mr. Osis on legal issues in various cases. Since

2014 Mr. Osis is a member of the working group for the Civil Procedure

Law at the Ministry of Justice of the Republic of Latvia. Since 2011 Mr.

Osis is employed as an assistant for the Dean of the Faculty of Law of the

University of Latvia.





Foreword





The basis of Latvian Civil Procedure Law was a civil process law inherited from the

pre-independence times (Regulation of the Civil Procedure) – the law of 1864 of the

Russian Empire which was adapted to the needs of Latvia as soon as it gained

independence in 1918. In 1938 it was renamed to the Civil Procedure Code. During the

Soviet occupation since 1940, the Civil Procedure Code was replaced by the Civil

Process Code of the Russian Soviet Federative Socialistic Republic, and later on in

1964 replaced by the Civil Procedure Code of Latvia which was then regarded as an

integrated part of the Soviet Union. This later code which, at least in theory, prescribed

inquisitorial process was replaced again by the Civil Procedure Code in 1999 after

Latvia regained its independence.



The Latvian judicial system slowly, but steadily recovered and returned to the principles

that were established during the first period of independence (1918-1940).



The Civil Procedure Law of Latvia, which was passed in 1999, established civil

procedure based on disposition of parties which allows the parties decide on the

progress of a civil law dispute by competing before the court on equal terms. Each

participant is entitled to appear before the court and give their explanations orally or in

writing, directly or through representatives.



The parties may freely choose by which means of proof to substantiate their claims;

each party shall prove the facts upon which they base their claims or objections. No

evidence shall have a predetermined effect as would be binding upon the court.

However, there is a set of legal presumptions of facts in the material law (Latvian Civil

Code) which are strikingly similar to those one can find in the Roman law.



The Latvian process has abandoned the principle which was dominant under the pre-war

system where certain kind of evidence enjoyed preference, for instance, not allowing the

witness testimony to overturn the fact finding based on written evidence. Latvian

contemporary process has also abandoned all elements of inquisitorial court system

which prevailed during the Soviet occupation (1940-1991). Although formally the law

states that the court must establish material truth, still in case of collision between

admittance of certain claims by the party and conviction of the court contradicting this

admittance, the decisive role must be devoted to the former rather than latter.



The tendency of simplification of certain types of hearings, like abandoning a

hearing before the court of the second instance in some legal disputes or

introducing of a written procedure, is a characteristic feature of the modern

Latvian civil process and its application in practice.





Evidence in Civil Law – Latvia

J. Rozenfelds, D. Ose & Martins Osis





Contents





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

1

Introduction................................................................................................ 1

2

Fundamental Principles of Civil Procedure ............................................... 3

2.1

Principle of Free Disposition of the Parties and Officiality

Principle ..................................................................................................... 3

2.2

The Adversarial and Inquisitorial Principles.............................................. 6

2.3

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

Contradictory Principle .............................................................................. 8

2.4

Principle of Orality – Right to Oral Stage of Procedure and

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

2.5

Principle of Directness ............................................................................. 10

2.6

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

2.7

Principle of Pre-trial Discovery ............................................................... 13

3

General Principles of Evidence Taking ................................................... 13

3.1

Free Assessment of Evidence .................................................................. 13

3.2

Relevance of Material Truth .................................................................... 15

4

Evidence in General ................................................................................. 19

4.1

Comparision of Methods of Proof ........................................................... 19

4.2

Formal Rule of Evidence ......................................................................... 20

4.3

The Minimum Standard of Proof to Consider a Fact as

Established ............................................................................................... 21

4.4

Means of Proof ........................................................................................ 21

4.5

Formally Prescribed Type of Evidence .................................................... 24

4.6

Proving of Rights Arising Out of a Cheque or Bill of Exchange ............. 25

4.7

A Party Presents in the Proceedings Various Evidence:

Witnesses, Authenticated Documents, Private Documents and

Expert Opinion ......................................................................................... 25

4.8

Duty for Parties to Produce or Deliver Evidence. The

Consequences for Breach ......................................................................... 25

4.9

Duty for Third Persons to Deliver Evidence. Consequences for

Breach ...................................................................................................... 26

5

General Rule on the Burden of Proof....................................................... 27

5.1

Main Doctrine Behind Burden of Proof Rules in the Country ................. 27

5.2

Proof Standards in the Legal System ....................................................... 28

5.3

Rules Exempting Certain Facts from the Burden of Proof

(Recognized Facts, Well Known Facts) ................................................... 29

5.4

Extent of the Duty to Contest Specified Facts and Evidence

Regulated in the Legal System ................................................................ 32

5.5

The Doctrine of iura novit curia ............................................................... 33

5.6

The Court’s Duty to Advise the Party if the Facts Claimed by a

Party and the Proposed Evidence are Incomplete .................................... 34

ii

Contents



5.7

Means of Court to Induce Parties to Elaborate on Claims and

Express an Opinion on Any Factual or Legal Matter ............................... 35

5.8

Submission of Additional Evidence ......................................................... 36

5.9

Court’s Initiative to Collect Evidence in Civil Cases (e.g. for the

Protection of the Public Interest or in Family Matters) ............................ 37

5.10 Additional Submission of the Evidence Due to New Facts ...................... 38

5.11 The Right of a Party Charged with the Burden of Proof, Who is

Not in Possession of the Evidence, to Ask the Court to Issue an

Order, Addressed to a Third Person Holding the Evidence...................... 38

6

Written Evidence ...................................................................................... 39

6.1

The Concept of a Document in the Legal System .................................... 39

6.2

Documents for Which a Presumption of Correctness Exists .................... 41

6.3

Distinction Between the Evidential (Probative) Value of Public

and Private Documents ............................................................................ 43

6.4

Taking of Written Evidence ..................................................................... 44

7

Witnesses ................................................................................................. 45

7.1

Duty of a Witness to Testify .................................................................... 45

8

Taking of Evidence .................................................................................. 50

8.1

Sequence of Evidence taking ................................................................... 50

8.2

Bringing of the Evidence in Court, Appearance of the Witnesses

and Experts (or Other Objects) Before the Court ..................................... 51

8.3

Deadline for Taking of Evidence ............................................................. 53

8.4

The Hearing .............................................................................................. 55

8.5

Witnesses ................................................................................................. 56

8.6

Expert Witnesses ...................................................................................... 58

9

Costs and Language ................................................................................. 61

9.1

Costs ......................................................................................................... 61

9.2

Language and Translation ........................................................................ 65

10

Unlawful Evidence ................................................................................... 67





Part II – Synoptical Presentation .............................................................. 69

1

Synoptic Tables ........................................................................................ 69

1.1

Ordinary/Common Civil Procedure Timeline .......................................... 69

1.2

Basics about Legal Interpretation in Latvian Legal System ..................... 79

1.3

Functional Comparison ............................................................................ 79





References ................................................................................................ 89





Evidence in Civil Law – Latvia

J. Rozenfelds, D. Ose & Martins Osis





Part I


1


Introduction


Back in 1933 V. Bukovskis, one of the founders of theory and practice of the Latvian

civil procedure, wrote that contrary to criminal procedure, in the civil court it is

completely up to the parties what procedural tools and what evidence to choose. The

court will not interfere with the parties. The party also decides what will be the means to

convince the court that the party is right and that it needs assistance of the court. Only

the party knows whether its rights are violated.



The state has no interest in, let’s say, whether a payment due was indeed repaid or not,

because “vigilantibus ius scriptum est”.



It also follows from the principle of disposition that the one who is in control of his/her

own rights can abandon them to decide whether there is a need to apply to the court or it

is more convenient to suffer interference in the person’s rights, because “volenti non fit

iniuria” and “nemo iudex sine actore”.



It also follows from the principle of disposition that parties define amount of their

respective claims. It is of no importance for the court whether the party claims what is

owed by the other party in full amount or in part.2



As a consequence of this adversarial nature of the court, the parties on their own define

amount of the claim, and the court may not award more than it was claimed by a

party:” iudex ne eat ultra petita partium”. 3



As it was established by the same textbook, “one must follow the Ancient Roman

principle: “Principium instruendi processus ad instantiam partium” i.e. the court

follows only the data submitted to the court by the parties and only these data form the

material which can be used as an evidence by the court. ” 4



There are positive and negative features of adversarial court, V. Bukovskis pointed out.

Positive features are as follows:



2 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 233. lpp.

3 Turpat, 234. lpp.

4 Turpat.

2





Part I


1) The parties have better knowledge of their own case than the court has; for this

reason they are more capable in gathering necessary evidence;

2) The parties are more motivated than the court to find out what is important in the

case, and they are entitled to choose evidence and means of defence they would

prefer;

3) In order to secure impartiality of the court, the latter should not interfere in the legal

battle and shall restrict itself to the evidence provided by the parties. If the court

undertakes to collect evidence on its own, it may be accused of impartiality and lack

of objectiveness, i.e. that the material gathered by the court was favouring one of the

parties; besides, the difficulty would arise due to the fact that the court shall examine

the material which was gathered by the court itself;

4) The very nature of the private rights is such that interference of the court as a state

institution with these rights is unwelcome; also privacy is of importance, only a

party is entitled to raise the veil which is hiding the very relations of the household;

5) Adversarial court also fits with the principle of economic division of labour – each

party is responsible for collecting its own material, the court is only for evaluation

and examination of this material; it is a challenge for the parties to struggle, compete

and express personal courage and energy which keeps the civil procedure alive.



However, V. Bukovskis has also pointed out to disadvantages of the adversarial court.

This procedure, as he explained, is good where the parties are equally strong and

equally prepared. Then the legal battle develops in full swing and leaves for the court

impartiality to observe this battle. If this equality is not in place, the adversarial court

can lead to victory of injustice over justice; give the upper hand to smartness and

cunning over simple mindedness, wealth over poverty. A professional lawyer hired by a

party can easily win a poor adversary who lacks knowledge of law and is forced to

personally lead his or her own proceedings without knowing formal legal requirements.5



Never before or after this publication, the above mentioned principles of the Latvian

civil procedure have been described so profoundly and are still referred to by legal

writers as well as by courts ever since.



The legal background which has implemented the above mentioned principles has been

changed significantly within the course of time. Back in 1933 there was a Civil process

law inherited from the pre-independence times (Regulation of the Civil Procedure6), the

law of 1864 of the Russian Empire which was adapted to the needs of Latvia as soon as

it gained independence in 1918. In 1938 it was renamed to the Civil Procedure Code7.

During the Soviet occupation since 1940, the Civil Procedure Code was replaced by the

Civil Process Code of the Russian Soviet Federative Socialistic Republic, and later on

in 1964 replaced by the Civil Procedure Code of Latvia which was then regarded as an



5 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 236.-237. lpp.

6 Civīlprocesa nolikums. (Editor Dišlers K., Edition of 1932. with amendments and additions,

Dzīve un Kultūra, 1936); skat. arī Устав гражданского судопроизводства с изменениями и

дополнениями, последовавшими по 1924 г. (Editor В.И.Буковский, Издание АО Валтерс и

Рапа, 1925).

7 Civīlprocesa likums. (Kodifikācijas nodaļas izdevums, 1938).





Part I


3




integrated part of the Soviet Union. This latter code which, at least in theory, prescribed

inquisitorial process, was replaced again by the Civil Procedure Code in 1999 after

Latvia regained independence. The Latvian judicial system slowly, but steadily

recovered and returned to the principles described by V. Bukovskis almost a century

ago. During the Soviet occupation not only the principles of free disposition and

adversarial nature of the procedure were abandoned or at least degraded, but also the

role of the court as a main institution for solving legal disputes was significantly ruined.

As reflected in one of the textbooks of those times, the number of cases reviewed by the

courts in 1975 was less than 60 % of those which were dealt with shortly before the

Soviet occupation in 1940.8



2

Fundamental Principles of Civil Procedure



2.1

Principle of Free Disposition of the Parties and Officiality Principle



In respect of court proceedings by way of action there prevails principle of disposition

in the Civil Procedure Law of Latvia9 which allows parties to decide on the progress of

a civil law dispute. While the principle of officiality, in turn, is applied in respect of

civil matters to be adjudicated in accordance with special adjudication procedures.

These are the following matters (Section 251 of CPL):

1) regarding approval and setting aside of adoption;

2) regarding declaration of a person as lacking capacity to act and establishment of

trusteeship;

21) regarding termination of temporary trusteeship;

3) regarding establishment of trusteeship for persons because of their dissolute or

spendthrift lifestyle, or because of excessive use of alcohol or narcotics;

31) regarding termination of rights of a future authorised person;

4) regarding establishment of trusteeship for the property of absent or missing persons;

5) regarding declaration of missing persons as deceased;

6) regarding determination of such facts as are legally significant;

7) regarding extinguishing of rights in accordance with notification procedures;

8) regarding renewal of rights pursuant to debt instruments or bearer securities;

9) regarding inheritance rights;

10) regarding pre-emption with respect to immovable property;

11) regarding legal protection proceedings and insolvency proceedings;

12) regarding liquidation or insolvency of a credit institutions;

13) regarding declaration of a strike or an application to strike as being unlawful; and

14) regarding declaration of a lock-out or an application to lock-out as being unlawful.



Principle of disposition is not directly incorporated in a separate legal norm, but it arises

from several regulations of norms under the Civil Procedure Law (hereinafter – the

CPL). For instance, Section 74 of CPL regulates rights of parties by providing general

rights of the parties in dispute as well as specific rights of each party. It shall be noted



8 Rozenbergs J., Briģis I., Padomju civilprocesuālās tiesības (Zvaigzne, 1978), 6. lpp.

9 Civilprocesa likums (Civil Procedure Law) (14 Oct. 1998), Latvijas Vēstnesis, nr. 326/330,

1998.3.novembris, 74. pants.

4





Part I


that procedural rights of a party are not of mandatory character, it is possible to choose

the most appropriate and suitable ones to protect their rights or interests. Still autonomy

of parties may not be arbitrary. Restrictions are provided both by law and by the court.

The free choice of parties in the dispute is expressed as applying or failure to apply the

rights set forth by law. By choosing certain rights, the party shall observe procedure for

exercising respective norm. Principle of disposition is manifested in the following

rights:

1) bringing of action and defence against the claim – only a person whose rights or

interests are infringed may choose either to suffer infringement and resign to it, or

shall apply to a court by bringing an action (Section 110 and Section 2711 of CPL).

Whereas a person against whom the action is brought, may choose either to file

substantive objections against the claim or shall opt for more active means of

defence and bring a counterclaim (Section 148 of CPL and First paragraph of

Section 13612 of CPL).

2) limits and extent of the subject-matter of the claim – only the plaintiff shall decide

what infringed interests and rights he/she wishes to protect in court and in what

extent protection of the court is required. The court shall not exceed the limits of the

subject-matter of the claim, its grounds and extent (Section 192 of CPL13). Latvian

civil procedure does not admit et ultra petitium.

3) withdrawal of procedural rights fully or in part as well as their change within

proceedings – within review of the case, the plaintiff may withdraw from the raised

claim fully or in part. Both parties in dispute may reach settlement, transfer the case

to arbitration court or reach agreement with the opposite party by use of mediation.

These rights may be exercised by the plaintiff and the defendant until the moment

when review of the case is accomplished on the merits (Section 164 of CPL).



10 Section 1. Rights of a Person to Court Protection

(1) Every natural or legal person (hereinafter – person) has a right to protection of their infringed

or disputed civil rights, or interests protected by law, in court.

(2) A person who has applied to a court has the right to have their matter adjudicated by the court

in accordance with the procedures prescribed by law.

11 Section 127. Persons who may Bring Actions in Court

(1) Any natural person who has reached legal age and has the capacity to act, as well as any legal

person, may bring action in court to protect their infringed or disputed rights of a civil nature.

(2) Actions in the interests of minors or persons under trusteeship shall be brought by the legal

representatives of such persons, but in cases provided for in Section 72, Paragraph four of this

Law, actions may be brought by minors themselves.

(3) A public prosecutor, State or local government institutions, or persons entitled by law to

protect the rights or lawful interests of other persons in court, may bring an action in order to

protect rights of a civil nature of such persons where such rights are infringed or in dispute.

12 Section 136. Bringing Counterclaims

(1) A defendant is entitled, up to the moment of the closing of adjudication on the merits in a first

instance court, to bring a counterclaim against the plaintiff.

13 Section 192. Observance of Claim Limits

The court shall make a judgment regarding the subject-matter of the action set out in the action,

and on the basis specified in the action, not exceeding the extent of what is claimed.





Part I


5




4) appeal of the court’s rulings – in the occasions provided by the Civil Procedure Law,

the parties of the dispute shall have rights to appeal the court’s judgments and

decisions under appeal and cassation procedures.



It is stated in publications by Latvian lawyers that the principle of disposition may be

defined as „chances set forth by law for the parties to act with their material and

procedural rights and with means of their protection at their own initiative”14.



The Civil Case Department of the Senate for the Supreme Court of the Republic of

Latvia (since 01.01.2014 known as the Civil Case Department of the Supreme Court of

the Republic of Latvia) has ruled in the case on compliance of Sub-paragraph 1 of

Paragraph 1 of Section 400 and Paragraphs 1 and 3 of Section 405 of CPL with Section

92 of the Constitution of the Republic of Latvia that „principle of disposition of the

Civil Procedure law allows that a creditor may bring action or file application for

undisputed forced execution of obligations.”15 In such a way, a person may choose in

what proceedings to protect his/her infringed interests. Still, upon making such decision,

the person shall in future observe respective procedural requirements set forth by the

Civil Procedure law. Understanding of the principle of disposition is also contained in

another legal acknowledgment given by the Civil Case Department of the Senate for the

Supreme Court of the Republic of Latvia in the judgment no SKC-1627/2012 adopted

on October 17, 2012 stating that „a party itself shall choose either to apply to the court

and itself shall set the limits of its claim and procedural means to use. Principle of

disposition also refers to the appeal procedure, namely – a party shall choose either to

appeal against the judgment and in what extent. According to Paragraph 2 of Section

203 of CPL, if a part of a judgment is appealed, the judgment shall come into effect

regarding the part, which has not been appealed, after expiration of the time period for

appeal thereof.” 16



Section 93 of CPL states that each party shall prove the facts upon which they base their

claims or objections. Only in case the evidence is connected with protection of personal

data of a natural person, information of restricted availability or a commercial secret of

a merchant as well as if this evidence is in possession with the opposite party and due to

objective reasons they are not presented or not available for the party of the dispute, the

court may require to present such evidence upon a motivated request of a party to the

dispute. However, it should be taken into account that the initiative for necessity of the

evidence shall come from the party of the dispute and the court may dismiss such

request if obtaining of the evidence is possible also by the party itself.





14 Līcis A., Prasības tiesvedība un pierādījumi (Tiesu namu aģentūra, 2003), 56. lpp.

15 Latvijas Republikas Satversmes tiesas 2010.gada 17.maija spriedums lietā Nr. 2009-93-0 „Par

Civilprocesa likuma 400. panta pirmās daļas 1. punkta un 405. panta pirmās un trešās daļas

atbilstību Latvijas Republikas Satversmes 92. pantam”, http://www.satv.tiesa.gov.lv/upload/

spriedums_2009-93-01.htm (accessed 19 Feb. 2014).

16 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 17. oktobra

spriedums lietā Nr. SKC-1627/2012, at.gov.lv/files/uploads/files/archive/department1/2012/1627-

skc-2012.doc (accessed 10 Mar. 2014)

6





Part I


By bringing action, restrictions are also set forth for carrying out procedural activities.

In 2013 the Civil Procedure law implemented a new order with regard to presenting of

evidence. E.g. Paragraph 3 of Section 93 provides that evidence shall be submitted not

later than 14 days before a hearing, unless the judge has set another time period within

which evidence is to be submitted. Still, in view of the fact that obstacles may occur for

due submission of evidence, it is possible to file them within the hearing upon a

motivated request by a party unless it does not delay the hearing or the court has

justified the reasons for failure to file the evidence duly, or the evidence concerns facts

which have become known during the hearing. If a participant in a matter submits

evidence after the time period thereof has ended, and the judge finds that reason for duly

submission of evidence shall not be justified, the court may impose a fine up to 750

euro. When the judgment of the court of the first instance is appealed, new evidence is

admitted only in case if the court of appeal recognises that it was not possible to file

those evidences when the case was heard before the first instance.



Certain facts and circumstances, according to the CPL, may be proved only by means

set forth by law. E.g., birth, death, marriage of a person is confirmed by relevant

registration acts of civil status. With regard to legal persons, their establishment or the

powers of officials to act on behalf of a company may only be confirmed by the

decisions adopted by the Enterprise Register of the Republic of Latvia. While

ownership rights and other rights to immovable property may only be confirmed by

records in the Land register. Upon such circumstances, when the means of evidence is

determined by law, the court shall observe the law, and submissions of the parties that

do not comply with requirements of the law, shall not be binding. In other cases, based

on the principles of disposition and competition, the parties may freely choose by what

means of evidence they will substantiate their position in the case.



2.2

The Adversarial and Inquisitorial Principles



Adversarial principle is mentioned as one of the ruling principles in the Latvian civil

procedure. This principle is expressly defined in the legal norm. Section 25 of the law

On Judicial Power provides that within the legal proceedings, the parties shall exercise

their procedural rights in an adversarial form. While Section 1017 of the Civil Procedure

law describes the content of the adversarial principle – through the parties providing

explanations, submitting evidence and applications addressed to the court, participating

in the examination of witnesses and experts, in the examination and assessment of other

evidence and in court argument, and in performing other procedural actions. Legal

regulation is not exhaustive, but points out only the most essential activities by letting



17 Section 10. Adversarial Proceedings in Civil Procedure

(1) Parties shall exercise their procedural rights by way of adversarial proceedings.

(2) Adversarial proceedings shall take place through the parties providing explanations,

submitting evidence and applications addressed to the court, participating in the examination of

witnesses and experts, in the examination and assessment of other evidence and in court

argument, and performing other procedural actions in accordance with the procedures prescribed

by this Law.





Part I


7




both the court and the participants interpret observance of adversarial principle in the

civil procedure more widely.



Latvian civil procedure provides passive role for a judge in collecting evidence, but

imposes obligation upon the parties to assess and choose what evidence to submit to the

court and in what way prove the truth of their claims. In this way the civil procedure

diminishes the role of the principle of objective examination, yet without fully

excluding it from the civil procedure. Section 8 of CPL contains the principle for

determination of facts which obliges the court to clarify obtained circumstances in

accordance with the procedures prescribed by law. In this way the borders are marked

within which the parties shall exercise their procedural duties, i.e. file evidence on the

facts to be proved, but the court has the right to indicate to sufficiency or insufficiency

of the evidence.



The court at its own initiative may collect evidence only in matters concerning interests

of an under-aged child in the proceedings arising from trusteeship or access rights by

ordering the custody court to file its opinion. In the matters related to restrictions of a

person’s legal capacity due to disorders in mental health or other illnesses, the court

may order the custody court to file opinion on the person for whom the legal capacity

shall be restricted as well as the court itself requires a statement from the doctor on

assessment of health of the respective person and in case of need, also requires

psychological or psychiatric expertise. The court’s initiative to collect evidence in these

matters does not restrict participants to also collect evidence and file them to the court.



In other matters the court is not entitled to collect evidence at its own initiative; still it

has the right, upon the request of the party, to request evidence from the opposite party

or third persons if a participant of the case cannot obtain these evidences due to

objective reasons.



During exercising of adversarial principle, the court may not interfere in collecting of

evidence as carried out by the parties, but the court has rights to control sufficiency of

evidence and indicate to the parties that evidence has not been submitted for particular

facts. However, the choice of means of evidence will always be the right of the

participant, and the court may not interfere in exercising adversarial principle by

pointing to the particular means of proof as to how the evidence should be presented.



Section 188 of CPL provides that if during deliberation, the court finds it necessary to

determine new facts that are significant in the matter or to further examine existing or

new evidence, it shall resume adjudicating on the merits of the matter. Thus, the parties

of the dispute are themselves interested in due filing of sufficient extent of evidence on

all claims and facts to be proved according to the material norms.



In the preparatory stage before the hearing, the judge has the right to request from the

participants written explanations to clarify circumstances and evidences in the case as

well as, at its own initiative, appoint a preliminary hearing where participants of the

case are inquired on the merits of the case in order to make precise the subject-matter of

8





Part I


the case and its limits, explain procedural rights and duties to the participants,

consequences for exercising or failure to exercise certain procedural actions, to decide

on the applied request for evidences and appointment of expertise, try to reconcile the

parties and if necessary, defines a term until which certain procedural activities shall be

carried out. If the parties have not filed evidence on the specified circumstances of the

dispute, the judge shall decide the dispute guided by the evidences submitted.



2.3

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

Principle



Section 9 of the Latvian Civil Procedure law has consolidated the principle of equality

of parties as a general principle of the civil procedure. This principle states that in

regard to procedural rights, parties are equal and the court shall ensure that the parties

have equal opportunity to exercise their rights in order to protect their interests. The

amount of rights to be exercised by the parties is contained under Paragraph 2 of

Section 74 by defining the common rights of both parties, including: to acquaint

themselves with the materials of a matter, make extracts therefrom and prepare copies

thereof, to participate in court hearings, to make application regarding removal, to

submit evidence, to participate in examination of evidence, to submit petitions, to

provide oral explanations and written explanations to the court, to express their

arguments and considerations, raise objections against requests, arguments and

considerations of other participants in the matter, to appellate instance court judgments

and decisions, to receive true copies of judgments, decisions and other documents in the

matter, and to enjoy other procedural rights granted to them. Civil Procedure law does

not provide exhaustive list of these rights and in each individual case the court shall

observe that equality of parties is ensured within the dispute. This principle is also

related to the person’s rights to access the court and fair trial guaranteed by the

Constitution of the Republic of Latvia.18 Besides, each party is granted its specific rights

to be exercised solely by the plaintiff or the defendant in the matter. E.g. the plaintiff is

granted the right to withdraw the claim partly or fully, to reduce amount of the claim; in

writing, to amend the basis or the subject-matter of the action or to increase the amount

claimed before the adjudicating of the matter; while only the defendant has the right to

admit a claim fully or partly, or to bring a counterclaim or raise objections against the

claim.



It is the duty of the court to ensure in all occasions for the parties in the dispute equal

chances to receive information on the course of the matter, to inform on the adopted

decisions and initiated proceedings against the person.



Latvian law experts have indicated that in the proceedings parties take up equal

procedural status and only the court, upon deciding the case on merits, may establish

what are the mutual rights and obligations of the parties and during the course of the

dispute the parties shall be provided with equal chances to enjoy protection granted by

the court. Equality of parties does not mean that all procedural rights and obligations of



18 Latvijas Republikas Satversme (The Constitution of the Republic of Latvia) (15 Feb. 1922),

Latvijas Vēstnesis, nr. 43, 1993.1.jūlijs, 91. un 92. pants.





Part I


9




the parties shall be absolutely equal. Equality is said to admit differentiated approach to

the persons’ rights if it is justified in a democratic society. Digressions from equality of

parties in the civil procedure law are said to be objectively and reasonably grounded.

Since the parties usually have different, mostly opposite legal interests, it is not always

possible to balance rights of the parties. However, in all cases when one party is granted

more rights or imposed less duties, the opposite party should be provided with

respective procedural means.19



In case a party is at the opinion that restriction or violation of the principle of equality is

admitted, it has right to appeal against the adopted ruling under the appeal or cassation

procedure. Also – if the judgement by the court of the first instance has come into force

and was not appealed, a party may request the prosecutor to file a protest within the

procedure provided by Chapter 60 of CPL which provides re-adjudication of matters

due to breach of significant substantive or procedural norms. Such protest may be filed

by a Prosecutor General or a person from the Prosecutor’s General Office and the Chief

Prosecutor of the National law protection department provided that no more than 10

years have elapsed since the adjudication came into effect.



The Civil Procedure law provides also exceptions to the principle of hearing of both

parties, i.e. by providing other instruments to secure equality of parties, but at the same

time not to turn the civil procedure into a heavy and long-term litigation. E.g., the court

has right to make judgment in default if the defendant has not submitted explanations

and evidence regarding the brought action, but there is evidence in the matter that the

defendant has received documents from the court on initiation of proceedings. There is

also envisaged penalty in the CPL for the default to submit written explanations up to

EUR 150 which can be imposed upon the defendant according to the court’s decision.

If, due to inactivity of the defendant, the court decides to adopt judgment in default, the

defendant, in turn, is secured with possibility to file application on renewal of

proceedings and on hearing the matter anew by filing application to the court that has

made the judgment in default within 20 days from sending such judgment to the

defendant.



Similar procedural means are envisaged in the rapid procedures of CPL, such as

execution of obligations through court or execution of obligations through warning

procedure when a decision adopted by the court in written proceedings is subject to the

test of lawfulness if a debtor disputes the creditor’s claim in point of fact. Decisions in

these proceedings are adopted without convening a hearing. Similarly, without hearings

and without informing the parties on the hearing, there are reviewed applications on

securing of the claim or on securing of evidence if the respective applications are filed

in the court prior the action is raised or if the court establishes an urgent situation. Upon

such circumstances the opposite party has no chance either to file explanations or

evidences before the application is reviewed. The party, against whom the decision is

adopted, shall be informed duly not later than at the moment when the decision is



19 Opinion of Prof., Dr. iur. J. Rozenbergs; Latvijas Republikas Satversmes tiesas 2010. gada 30.

marta spriedums lietā Nr. 2009-85-01, http://www.satv.tiesa.gov.lv/upload/spriedums_2009-85-

01.htm (accessed 13 June 2014).

10





Part I


executed. Besides, it has the right to appeal against the court’s decision, but in case

securing of the claim is applied, the party may request its cancellation.



When a party is informed on reviewing of a claim in written proceedings without the

presence of parties, e.g. when ancillary complaint is heard on decisions adopted by court

(i.e. practically all decisions adopted by the first instance of the court), when claims of

small amount are heard (i.e. claims raised on collection of penalty or subsistence

payments not exceeding EUR 2100) as well as when complaints are reviewed in the

cassation instance, the parties are provided with right to file their written explanations

on the application to be heard.



2.4

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

Written Form



Paragraph 2 of Section 15 of CPL states that persons summoned and summonsed to a

court shall provide explanations and testimony orally. The testimony of previously

examined witnesses as recorded in the minutes, documentary evidence and other

materials, and shall be read out upon the request of the parties. A court is not required to

read out the documents in the matter, if the parties consent thereto. Observance of the

principle of orality as a general principle of the civil procedure is consolidated in all

cases when the matter is intended to be reviewed in a court hearing. Lately the Latvian

civil procedure has started consolidating the principle of written form providing that in

litigations where the sum of the principal claim amounts to 2100 EUR, they are to be

reviewed in written form. Also complaints on procedural violations and cassation

appeals are reviewed in written form. However, the participants to the matter and the

court at its initiative may require reviewing the matter by organising oral procedure.

Such situations may occur if it is not possible to solve the dispute guided by information

contained in written documents and it is necessary to inquire participants on certain

issues or a witness shall be examined whose means of testimony is providing of oral

testimony. The Latvian Civil Procedure law does not admit written witness testimonies.



2.5

Principle of Directness



Principle of directness as a general principle of the civil procedure provides that the

court of the first instance and the court of appeal shall themselves examine evidence

when the matter is reviewed. It means that the court examines materials submitted in the

matter and assesses them. Principle of directness is grounded on condition that the judge

on his/her own shall perceive what is happening in the hearing, shall listen to

explanations of parties and third persons on meaningful circumstances in the matter,

shall listen to testimonies of witnesses and to oral opinions given by experts by posing

accurate questions as well as shall assess written evidence, including those in electronic

form. It is within this principle that it is not possible to change or replace an absent

judge in the hearing with another judge to preside the hearing. Upon such circumstances

the civil procedure provides that hearing of the case shall be commenced on merits

anew. Principle of directness is also attributed to admission of the means of evidence.

E.g. only such person can act as a witness in the Latvian civil procedure who with





Part I


11




his/her own sense has perceived circumstances to be given testimony about.

Representation of a witness is not allowed or giving of derived testimonies. Similar

provision is incorporated under Paragraph 2 of Section 111 of CPL by stressing that

primarily written evidence is submitted or presented to the judge if doubts arise about

authenticity of a derived document. Paragraph 4 of Section 111 of CPL provides that if

documentary evidence has been submitted to the court by way of a true copy, copy or an

extract, the court is entitled to require, pursuant to a substantiated request of participants

in the matter or upon its own initiative, to submit or present the original if it is necessary

for determining the facts in the matter. As an exception from this principle can be

mentioned occasions when it is necessary to provide evidence before the claim is raised.

Especially – if it is necessary to examine a witness or perform inspection of an object in

the place of its location. Upon such circumstances the court, upon application of the

potential plaintiff, may decide on obtaining the witness testimony by examining such

witness in an individual court sitting. Witness testimony shall be recorded in the

minutes and later this testimony is read out in the hearing when the case is reviewed on

merits. It is similar with inspection of the object in the place of its location. This task

may be assigned to a sworn law enforcement officer who fixes the fact during

inspection and submits it to the court. In this way the court gathers necessary

information on circumstances in the matter through derived evidence instead of the

primary source.



When the claim of appeal is heard there is a precondition that new evidence shall not be

admitted by the court. Exceptions are those cases when it was not possible to obtain the

evidence before or they were not known when the case was initiated before the court of

first instance.



The court of appeal itself decides what evidence shall be examined during the hearing

but it should be taken into account that facts established in the court of the first instance

shall not be examined anew by the court of appeal if they were not challenged in the

claim of appeal.



The claims raised according to general provisions, shall be heard both before the first

and the second instances of court in oral proceedings by convening a hearing. While in

proceedings, where the subject-matter of the claim is collection of money or subsistence

payments not exceeding EUR 2100 (claims of small amount), the hearing before the

court of the first instance is held only according to the request of a party or if it is the

court who finds it necessary to hold a hearing. In the court of appeal, the claims of small

amount are reviewed in writing unless the court decides otherwise. Besides, a request by

a party to convene a hearing before the court of appeal is not binding upon the court.



The CPL does not also envisage re-adjudication of cases where the judgment or a

decision has come into force. A case may be heard anew due to discovery of new

substantial circumstances (Sections 478-482) or due to substantial material and

procedural violations of legal norms in the cases heard only before the first instance

court (Sections 483-485). A case may be requested to be re-adjudicated if no more than

10 years have passed since the ruling has come into force.

12





Part I


For a case to be heard anew due to newly discovered circumstances, a person within

three months from the day when the facts forming a basis for re-adjudication of the

matter have been ascertained, shall file application to revoke the earlier adopted

decision and re-adjudication of the case. An application in connection with newly-

discovered facts shall be adjudicated in accordance with the written procedures. If a

court determines that there are newly-discovered facts, it shall set aside the appealed

judgment or decision in full or as to part thereof and refer the matter for it to be re-

adjudicated in a first instance court.



To have the case re-adjudicated due to substantial breach of material and procedural

norms, a person shall request the Prosecutor General or a Person from the Office of the

Posecutor General and the General Prosecutor of the Department for protection of the

state law to file a protest in the Supreme Court on the lawfully enforced ruling of the

first instance court. The grounds for submitting a protest are the breach of substantive or

procedural norms of law as has been ascertained in matters which have only been

adjudicated in a first instance court, if the court adjudication has not been appealed

pursuant to procedures prescribed by law due to reasons independent of the participants

in the matter, or the infringement, pursuant to a court adjudication, of the rights of State

or local government institutions or of such persons as were not participants in the

matter.



2.6

Principle of Public Hearing



Principle of public hearing provides that all matters shall be reviewed in public hearing,

except those cases when the law provides closed hearing to protect private life of

participants in the case. The Latvian civil procedure provides closed hearing regarding

determination of parentage of children, approval and annulment of adoption, annulment

or dissolution of marriage, declaring a person to be lacking capacity to act because of

mental illness or mental deficiency, establishment of temporary trusteeship, suspending

of future authorisation, unlawful movement of a child across the border to a foreign

state or detention in a foreign state and unlawful movement of a child across the border

to Latvia or detention in Latvia, and the matters regarding trusteeship and access rights.

These cases only admit presence of a judge, secretary of the hearing, expert, interpreter

and participants of the matter. Representatives from public and other persons interested

in the case may not be present in the hall of the hearing when such cases are reviewed.

However, also in matters, which are reviewed in closed hearing, the operative part of

the court judgement shall be publicly pronounced, except in matters regarding

confirmation or revocation of adoption which protect the secret of adoption. According

to a reasoned request by a participant in the matter or at the discretion of the court, the

court hearing or part thereof may be declared as closed if it is necessary to protect

official secrets or commercial secrets, the private life of persons and confidentiality of

correspondence, interests of under-aged persons, to examine a person who has not

reached 15 years of age and in the interests of court adjudication.



Restriction to the principle of public hearing also refers to persons who participate in the

hearing as participants or listeners. Only persons who have reached the age of 15 may





Part I


13




participate in the hearing. Persons under the age of 15 may only be present at court

sittings with the permission of the court. There are also other restrictions to the principle

of public hearing. E.g. only the judge, participants to the case and experts may examine

the case materials. Other persons do not enjoy such rights. Representatives from public

may be present in the hearing and listen to what is happening, fix the course of the

hearing in audio or video form if participants to the case do not object and the judge has

given permission.



Witnesses may be present in the court hearing only when the testimony is given and

afterwards. Until the testimony is given, the witness may not listen to what is happening

in the hearing. In closed hearings the witness must leave the hearing after the testimony

has been given.



In public hearings, due to capacity of the hall for the hearing, preference is given to

relatives of the participants and media representatives.



2.7

Principle of Pre-trial Discovery



This principle is not consolidated in the Latvian civil procedure as a necessary

procedural activity. Parties file their evidence in the case in several stages. Initially,

when the plaintiff raises claim in the court, all evidence shall be attached that is in the

plaintiff’s possession and substantiates facts and circumstances described in the

application of claim. The defendant, in turn, submits all evidence that is in his/her

possession when written explanations are submitted to the court. However, each party

has right to examine materials filed by the opposite party and decide what additional

evidence still to submit or ask the court to request from the other party. The final term to

submit evidence is 14 days before the date of the hearing. Additional evidence may be

submitted also during the hearing on condition that they do not delay review of the

matter. Otherwise the court shall postpone the hearing to a later date by letting

participants of the case examine the new evidence and prepare their counter-arguments

and evidence. Submission of new evidence is not allowed if hearing of the case is

accomplished on the merits and debates of the parties have started.



3

General Principles of Evidence Taking



3.1

Free Assessment of Evidence



The court assesses evidence from the moment they are received (Section 149 of CPL)

until making of the judgment (Paragraph 5 of Section 193 of CPL). Criteria for free

assessment of evidence are provided under Section 97 of CPL – A court shall assess the

evidence in accordance with its own convictions, which shall be based on evidence as

has been thoroughly, completely and objectively examined, and in accordance with

judicial consciousness based on the principles of logic, scientific findings and

observations drawn from every-day experience. Evidence in the civil matter shall be

filed by parties and other participants of the proceedings, but only the court may

recognise this information to be evidence. Thus the court must draw a boundary

14





Part I


between minor information and important information related to the circumstances to be

proved, and the status of evidence shall be allocated only to such information that refers

to the circumstances to be proved in the civil law dispute. The Latvian legal literature

has expressed opinion that guided by the principle of free assessment of evidence, in

situations when one evidence contradicts with other evidence, the court may give

preference to one of such evidences.20 Still the court’s choice may not be arbitrary. Each

such choice shall be based on arguments and grounded in the motivation part of the

judgment, reasons shall be indicated why the evidence filed by a party was not chosen

by the court due to incompliance with the subject-matter and the grounds of the claim.

The arguments described by the court may be made examined by a participant in the

case by appealing the judgment under appellate or cassation proceedings. Latvian legal

doctrine has stated that “according to provisions under Section 97 of CPL, the

testimonies presented in the case shall be evaluated and the judgment shall contain

conclusions what meaningful circumstances in the case they prove, but if the court

concludes that evidence does not prove meaningful circumstances, it shall present

arguments why it has come to such conclusion.”21



Free assessment of evidence obliges the court to engage in essence of each evidence,

compare it with other evidences and allocate to it the meaning that it has obtained in

connection with examination of other meaningful circumstances. By interpreting

Section 97 of CPL, the Senate for the Supreme Court of the Republic of Latvia has

stated that upon assessment of evidence, the court shall specify, according to Section 97

of CPL, why it has given preference to one body of evidence in comparison to another,

and has found certain facts as proven, but others as not proven.22



Free assessment of evidence is restricted by scientific acknowledgments that shall be

taken into account when evidence is submitted and assessed as well as by restrictions

contained in material norms indicating that particular circumstances may be established

by the court in no other way as by particular evidence. Thus, Section 1838 of the Civil

law states that payment may be proven by all permitted means of proof, but particularly

with a written confirmation or a receipt. Special credibility is allocated to information

recorded in public registers. Their credibility may be disputed only by bringing action to

the court. Therefore, information provided by such public registers as the Land register,

Road Traffic Department register, Commercial register, Commercial pledge register etc.

shall not be approved by any other evidence and the court has no grounds to dispute

their credibility and authenticity. It is similar with information contained in public

document. Paragraph 3 of Section 178 of CPL envisages that the veracity of notarised

documents may not be disputed. Such may be disputed by bringing an independent



20 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 349. lpp.

21 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2008. gada 29. oktobra

spriedums lietā Nr. SKC – 386, http://at.gov.lv/files/uploads/files/archive/department1/2008/386-

la.doc (accessed 13 June 2014).

22 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2011. gada 12. janvāra

spriedums lietā Nr. SKC-7/2011, http://at.gov.lv/files/uploads/files/archive/department1/2011/

7.pdf (accessed 13 June 2014).





Part I


15




action.23 It is stated in the legal doctrine regarding the meaning of documents and acts

executed in public and private procedure that the preference that is allocated to public

documents by law is based on presumption that office-holders taking part in drafting

these documents, have no interest in certifying false information and they may be held

liable for certifying false circumstances. The preference of public acts is such that if

their authenticity is not disputed, the content of the document may not be contested

either by witness testimonies or by private documents.24 Without bringing individual

action, information contained in the public act may not be contested either by witness

testimonies or by a private document.25



Latvian Civil Procedure law admits using of all means of evidence provided by the

Civil Procedure law on condition that no specific means of evidence is required – the

necessary evidence.



Latvian civil procedure has consolidated several stages for assessment of evidence:

1) Initial assessment – during taking of evidence and review of the case;

2) Final assessment – the court is doing it after adopting decision on the merits of the

case;

3) Control (supervising) assessment – carried out by supreme instances if the judgment

is appealed.



The main criteria for assessment of evidence by the court are their credibility when it is

established whether evidence corresponds with objective reality, their truth and

impartiality. The court’s conviction about credibility of evidence shall be sufficient. It

cannot be based on doubts about veracity of evidence.



Latvian legal literature has stated26 that assessment of evidence is certain cognitive

process containing aspects of both logics (ascertains credibility) as well as of lawfulness

(requirement of evidence, their joining to the case file).



3.2

Relevance of Material Truth



Paragraph 1 of Section 17 of the law “On Judicial Power” provides that it is the duty of

a court, when adjudicating any matter, to ascertain the objective truth. However, Section

8 of CPL states at the same time that the court shall clarify the circumstances of a

matter, examining evidence, which has been obtained in accordance with the procedures

prescribed by law. It is the court’s duty to establish composition of facts to be proved in

the case according to the composition of material norms. In order to establish material



23 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 18. aprīļa

spriedums lietā Nr. SKC-176/2012, http://at.gov.lv/files/uploads/files/archive/department1/2012/

176-skc-2012.doc (accessed 13 June 2014).

24 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 392.-393. lpp.

25 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 18. aprīļa

spriedums lietā Nr. SKC-176/2012, http://at.gov.lv/files/uploads/files/archive/department1/2012/

176-skc-2012.doc (accessed 13 June 2014).

26 Līcis A., Prasības tiesvedībā un pierādījumi (Tiesu namu aģentūra, 2003), 79. lpp.

16





Part I


truth, the court shall establish facts based on evidence examined in the hearing and

obtained in lawful procedure. It is stated in the legal literature27 that „the court is in no

way an indifferent spectator that puts up with anything the parties are presenting to it

and in the light the parties are presenting to it. It is the duty of the court to establish

truth.”



There are no restrictions set forth in the Latvian civil procedure to establish material

truth. In a civil matter participants may not allege protection of commercial secret or

immunity of private life to refuse submitting evidence to the court. For the sake of

protection of private life or commercial secret, a party may request a closed hearing, but

the evidence must be submitted in the case.



At the same time parties may freely choose by which means of proof to substantiate

their claims. In this way each party of the dispute shall evaluate whether there is a

possibility to choose such means of proof that will most completely show circumstances

of the dispute and will let the court obtain necessary credibility for making the

judgment. For the sake of finding the truth, Section 93 of CPL has consolidated

requirement that each party shall prove the facts upon which they base their claims or

objections. Plaintiffs shall prove that their claims are well-founded. Defendants shall

prove that their objections are well-founded. Section 129 of CPL provides the plaintiff’s

duty to attach to the statement of claim documents which confirm facts on which the

claim is based. Paragraph 2 of Section 148 of CPL, in turn, sets forth the defendant’s

duty to file evidence corroborating his or her objections against the claim and their

substantiation. In case any of the parties are in difficulty to submit necessary evidence

to the court and they are meaningful to prove circumstances, the court or a judge is

entitled to require, pursuant to a substantiated request from a participant in the matter,

documentary evidence from the State and local government institutions and from other

natural or legal persons (Paragraph 1 of Section 112 of CPL). Such activity has

procedural character because if a party refuses to submit the documentary evidence

required by the court, without denying that the party possesses such evidence, the court

may find as proved facts which the opposite party sought to prove by referring to such

documentary evidence (Paragraph 4 of Section 112 of CPL).



In relation to obtaining the witness testimonies, Section 108 of CPL provides that a

person called as a witness shall attend at the court and give true testimony regarding

facts of which they have knowledge. The following persons may refuse the duty to

testify: 1) relatives in a direct line and of the first or second degree in a collateral line,

spouses, affinity relatives of the first degree, and family members of parties; 2)

guardians and trustees of parties, and persons under guardianship or trusteeship of the

parties; and 3) persons involved in litigation in another matter against one of the parties

(Section 107 of CPL).



Expertise as the means of proof may be chosen by a party, but it is appointed by the

court. Any specialist of the respective field may be freely chosen as an expert that will



27 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 332.-333. lpp.





Part I


17




be competent to provide expert opinion. Still Paragraph 5 of Section 122 of CPL

provides rights for an expert to refuse from providing opinion, if the material provided

for their examination is not sufficient, or if the questions asked are beyond the scope of

the special knowledge of the expert. In such cases the expert shall notify the court, in

writing, that it is not possible to provide an opinion.



Upon such circumstances when there are obstacles to use witness testimonies or expert

opinion, participants of the case have a chance to choose other means of proof by which

it would be possible to obtain the facts to be proved according to the respective material

norm.



Participants of the case shall file all evidence duly to the court of the first instance

because the Latvian Civil Procedure law does not admit filing of evidence in the court

of appeal if they could have been submitted when the case was reviewed by the court of

the first instance. The same restriction refers to new facts that may be announced to the

court of the first instance until the case is reviewed on the merits. As an exception may

be mentioned Paragraph 4 of Section 430 of CPL consolidating the right for a person to

file new evidence in the court of appeal if due to justifiable reason it could not be

submitted to the court of the first instance.



New evidence and facts ( ius novorum) may be filed to the court due to newly-

discovered circumstances (Sections 478-482 of CPL). To re-adjudicate civil

proceedings regarding a case that has already been reviewed and where a judgment has

already come into force, there should be certain pre-conditions:

1)

The application may be submitted within three months from the day when the facts

forming a basis for re-adjudication of the matter have been ascertained, but not

later than within 10 years since the judgement or decision have come into force;

2)

There should be a newly-discovered fact which may be as follows:

2.1) essential facts of a matter which existed at the time of the adjudicating of the

proceeding but were not and could not have been known to the applicant;

2.2) the determination, pursuant to a court judgment which has come into lawful effect

regarding a criminal matter, that there was knowingly false testimony of witnesses,

expert opinions, or interpretations, or fraudulent written or real evidence, upon

which the rendering of a judgment was based;

2.3) the determination, pursuant to a court judgment that has come into lawful effect

regarding a criminal matter, of criminal acts due to which an unlawful or

unfounded judgment has been rendered or a decision taken;

2.4) the setting aside of such court judgment or such decision by another institution as

was a basis for the rendering of the judgment or taking of the decision in this

matter;

2.5) the acknowledgement of a norm of law applied in the adjudication of the matter as

not in conformity with a higher norm of law in lawful effect; or

2.6) an adjudication of the European Court of Human Rights or other international or

trans-national court in such matter, from which it arises that court proceedings

should be commenced anew. In such case a court, in taking the adjudication in the

resumed matter, shall base on the facts determined in the adjudication of the

18





Part I


European Court of Human Rights or other international or trans-national court and

their legal assessment.



The legal literature28 states that the main requirements for the principle of truth are: to

establish in the case existence or non-existence of meaningful factual circumstances by

referring in the judgment only to the facts and regard as established only those facts that

were founded in the case by evidence and obtained in the lawful procedure with

sufficient credibility. The court shall assess all evidence in the case by assessing all

circumstances on the whole.



“The law provides the so-called “free” principle for assessment of evidence that was in

force already in the pre-war Latvia. This principle is consolidated also in procedural acts

of other countries, e.g. in Zivilprozessordnung, parargraph 286 (Der Grundsatz der

freien richterlichen Beweiswurdnung). (...) Norms of the Civil Procedure law do not

bind the court with (...) formal provisions for assessment of evidences, still they oblige

the court to substantiate in the judgment their behaviour in assessment of evidence. In

characterising the principle of free assessment of evidence consolidated by law, Prof.

Bukovsky says: “On the one hand, it does not restrict the court in assessing the

evidence, still on the other hand – obliges the court to deeply comprehend the essence of

each evidence in comparison with other evidence and assign it with a meaning it

deserves as to its inner value (...). Guided from the principle of free assessment of

evidence, in situations when one evidence contradicts with another, the court may give

preference to one of them, e.g. to written evidence over testimonies of witnesses or the

other way round; the court may ground its decision on testimonies of some particular

witnesses disregarding other testimonies.”29



Section 97 of CPL states: “(1) A court shall assess the evidence in accordance with its

own convictions, which shall be based on evidence as has been thoroughly, completely

and objectively examined, and in accordance with judicial consciousness based on the

principles of logic, scientific findings and observations drawn from every-day

experience.”



In view of the fact that the court evaluates only those evidences submitted by the parties

on which they ground their explanations and applied claims as well as that in the

Latvian CPL the principles of disposition and competition prevail, which considerably

restricts the court’s chances to obtain evidence at their own discretion, it must be

concluded that the court cannot in all circumstances establish objective truth. The

court’s judgment will analyse only those facts and evidences to which the parties have

indicated to. Thus it arises that material truth which is established by the court in the

judgment by assessing evidences filed by the parties in their interconnection, would

rather correspond with the potential material truth standard (probability) based on the

court’s inner conviction than on the definite material truth standard (certainty).





28 Līcis A., Prasības tiesvedībā un pierādījumi (Tiesu namu aģentūra, 2003), 53. lpp.

29 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 271.-272. lpp.





Part I


19




4

Evidence in General



There is consolidated a principle in the Latvian civil procedure that the court shall

accept only those evidences that have meaning in the case. Participants of the case can

themselves choose by which evidence to prove existence or non-existence of particular

circumstances. Paragraph 2 of Section 97 of CPL provides that no evidence shall have a

predetermined effect as would be binding upon the court. However, claims of each party

shall be grounded by evidence and they shall be sufficient for the court to be convinced

about existence of certain facts.



4.1

Comparision of Methods of Proof



Paragraph 2 of Section 97 of CPL prescribes: No evidence shall have a predetermined

effect as would be binding upon the court.



As asserted in recent publications on the subject, the Latvian law prescribes the so

called principle of “freedom” in evaluation of evidence, pointing out that this principle

could be found, for instance, in the German civil procedure code (Zivilprozesordnung –

ZPD) § 286.30



Latvian process has abandoned the principle which was dominant under the pre-war

system where certain kind of evidence enjoyed preference, for instance, not allowing the

witness testimony to overturn the fact finding based on written evidence.31



However, Paragraph 2 of Section 97 of CPL must be interpreted in conjuncture with

other Sections.



For instance, Paragraph 2 of Section 178: Documentary evidence may not be disputed

by the person who himself or herself has signed such evidence. Such a person may

dispute the evidence by bringing an independent action, if their signature was obtained

under the influence of duress, threat or fraud.



The veracity of Land Register entries, notarised documents or other acts certified in

accordance with procedures specified by law may not be disputed. Such may be

disputed by bringing an independent action (Paragraph 3 of Section 178).



The submitter of disputed documentary evidence shall explain at the same court sitting

whether they wish to use such documentary evidence or whether they request that it is

excluded from the evidence (Paragraph 4 of Section 178).



If a participant in the matter wishes to use the disputed evidence, the court shall decide

as to allowing its use after comparing such evidence with other evidence in the matter

(Paragraph 5 of Section 178).



30 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 271. lpp.

31 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 335.-339. lpp.

20





Part I


A participant in a matter may submit a substantiated application regarding forgery of

documentary evidence (Paragraph 1 of Section 179).



4.2

Formal Rule of Evidence



It is pointed out by one of Latvian authors that there is contradictory regulation in the

Civil Law of Latvia. On the one hand, he states, the law declares freedom to choose the

form by the parties, i.e. Section 1473: The form of a lawful transaction shall depend on

the discretion of participants in the matter, except in instances specifically indicated by

law. On the other hand, the same law requires that there are certain requirements

towards the form of the transaction.32



This seems to be a little bit of exaggeration. In fact all examples used by the above

mentioned author prove that Latvian law is providing flexibility. For instance, only a

written deed can serve as sufficient grounds to amend land register record. However, the

acquirer is entitled to claim from the other party to carry out alienation transaction in

written form and in case of refusal take him/her to the court. The latter then can rule that

the acquirer is entitled to become a new owner. Such court decision can replace a

written agreement between the parties and it is binding for the Land Register (Sections

1474-1481 of Latvian Civil Law, Section 44 of the Land Register Law). Similar rules

i.e. that the agreement must be in written form, exist in several areas, for instance, the

employment agreement (Labour Law, Sections 11, 17, 37, 40), copyright licence

agreement (Copyright Law, Sections 13, 17, 64, 672 ) etc.



However, the more unprotected party like an employee and author can always use

different means in order to prove that the specific agreement in issue was in fact stepped

into even if necessary requirements of written form were not strictly followed.



Thus, in general, no formal rule of evidence exists in Latvia.



Still, the picture is significantly different in the area of civil procedure which is applied

to the participants in the court dispute. Rather unusual restrictions provide very

carefully each movement of the arguing parties once the proceedings are initiated.



For instance, Section 85 of CPL provides: “Representation of natural persons shall be

formalised with authorisation certified by a notary.”



As to the scope of authority, Paragraph 2 of Section 86 of CPL provides: “Full or partial

withdrawing of an action, varying of the subject-matter of an action, raising of a

counterclaim, full or partial admitting of a claim, entering into a settlement, transferring

of a matter to an arbitration court, appealing court adjudications in accordance with

appellate or cassation procedure, submitting execution documents for recovery,

receiving property or money adjudged, and terminating execution proceedings must be

specially set out in the authorisation issued by the person represented.”



32 Rudāns S., Darījuma rakstiska forma, http://www.juristavards.lv/doc.php?id=169189 (accessed

19 Feb. 2014).





Part I


21




Courts strictly follow this rule and does not accept appeal petition if it is signed by a

representative of the party in the court dispute who is simply mandated to “carry out all

necessary procedures in any court” and if his/her power of attorney does not expressly

specify the right to “appealing court adjudications in accordance with appellate or

cassation procedure”. No excuse will be accepted and the appeal petition will not be

accepted.



At the same time – if the same appeal petition will be signed in person by the party in

absence of any witness, let alone the notary public, no one will even bother to follow up

whether such signature was genuine and in this case the appeal petition most probably

will be duly accepted.



4.3

The Minimum Standard of Proof to Consider a Fact as Established



Section 97 of CPL states: “(1) A court shall assess the evidence in accordance with its

own convictions, which shall be based on evidence as has been thoroughly, completely

and objectively examined, and in accordance with judicial consciousness based on the

principles of logic, scientific findings and observations drawn from every-day

experience.” Thus it may be concluded that the grounds for assessment of evidence shall

be judicial consciousness.



If one party admits the facts on which the claims or objections of the other party are

based, a court may find such facts to be proven, if the court is not in doubt that the

admission was not made due to the effects of fraud, violence, threat or error, or in order

to conceal the truth (Paragraph 2 of Section 104 of CPL).



During a court hearing the judge may put questions to participants in the matter, if a

participant expresses himself or herself obscurely or indefinitely, or if it is not evident

from the explanations whether or not the participant admits or denies the facts on which

the claims or objections of the other party are based (Paragraph 2 of Section 167 of

CPL).



The reasoned part of a judgment shall state the facts established in the matter, the

evidence on which the conclusions of the court are based, and the arguments by which

such evidence, or other evidence, has been rejected (Paragraph 5 of Section 193 of

CPL).



In case the court has avoided arguing why the evidence provided was not taken into

account and the conclusions of the court decision contradicted the evidence, the

interested party inevitably will point it out in the appeal claim.



4.4

Means of Proof



Latvian Civil Procedure law contains certain means of proof that may be used by parties

to substantiate their claims. They are as follows:

1. Explanations by parties and third persons (Section 104 of CPL);

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Part I


2. Testimony of Witnesses (Sections 105-109 of CPL);

3. Documentary evidence (Sections 110-114 of CPL);

4. Real evidence (Sections 115-119 of CPL);

5. Expert-examination (Sections 121-125 of CPL);

6. Opinion of an authority (Section 126 of CPL).



This list is exhaustive and no other means of proof is admitted. Participants of the case

have right to freely choose particular means of proof depending on what kind of

evidence is at their disposal. Civil procedure law does not provide restrictions in

choosing the means of proof.



As special means of proof in the Latvian civil procedure are explanations of the parties.

In view of the fact that in a civil dispute parties are interested in the outcome of the

case, Paragraph 1 of Section 104 of CPL states that such explanations have incomplete

power of evidence because explanations given by each party shall be substantiated with

other evidence submitted in the case. Restrictions for the party to provide explanations

are set forth by a legal norm by defining minimum age of procedural capacity to act or

general restrictions to legal capacity established by a judgment due to mental or other

health disorders. Thus, for example, Section 72 provides that for natural persons under

the age of 15 the court matters shall be conducted by their legal representatives without

letting the under-aged person give explanations. Natural persons at the age from 15-18

are represented by their legal representatives. Natural persons having attained legal age,

but whose legal capacity has been restricted by the court are represented by their legal

representatives in the court or – in cases specified by law – by legal representatives

together with these persons. In the cases conducted by representatives of the mentioned

persons, the court also invites the represented persons. Therefore, the court may also

listen to the opinion of these persons and take it into account by assessing it with other

circumstances of the case and other evidence in the case. Other restrictions with regard

to the right of the parties to provide explanations are not provided.



Explanations by parties can be given in oral or in written form. Written explanations of

participants in a matter shall be read at the court sitting in accordance with the order set

out in Section 165 of this Law, and shall be appended to the file of the case (Section 166

of CPL). Withdrawal of a claim or admission of a claim by a party shall be recorded in a

separate statement prepared by the court and signed respectively by the plaintiff or by

the defendant (Paragraph 1 of Section 164 of CPL).



Latvian Civil Procedure law does not provide special procedure in which explanations

of the parties are allocated with full meaning of evidence when testimony is given.

Section 167 of CPL provides that one party may ask questions to other party which refer

to the case. The judge may itself put questions to participants in the matter, if a

participant expresses himself or herself obscurely or indefinitely, or if it is not evident

from the explanations whether or not the participant admits or denies the facts on which

the claims or objections of the other party are based. If a party refuses to answer a

question regarding disputable facts, or refuses to provide explanations regarding such,

the court may assume that the party does not dispute such facts. In such cases the court,





Part I


23




guided by evidence and explanations filed by the opposite party, may solve the dispute

by admitting circumstances of the dispute as proved or not proved. There are not

specifically stated in the Civil Procedure Law such cases when a party would be given

right to refuse from giving explanations. In some cases giving of explanations is set

forth as a duty of the party. For instance, Paragraph 1 of Section 150 of CPL provides

that if a participant in a matter without a justified reason fails to submit explanations,

does not reply to a request by the judge within the time period set by the judge, the

judge may impose a fine not exceeding 150 euro.



Amendments to the Civil Procedure law dated January 4, 2014 with regard to execution

of obligations through the warning procedure contain a new duty for a party to provide

statement that the court is presented with true information on facts and the applicant is

informed that liability may enter as per the Criminal law regarding presenting false

application. Such statement is confirmed by the applicant’s signature. In updating the

Latvian Civil Procedure law it is also intended to introduce such statement in those

categories of court cases where a party cannot file evidence. Such statement of truth is

also intended for applications filed by a person who has suffered in violence for the

court to determine temporary means of protection against the violent person until the

claim is brought to the court.



Latvian Civil Procedure law does not provide chance for a party of the dispute to take

oath.



Paragraph 6 of Section 74 of CPL states that parties shall exercise their rights and

perform their duties in good faith. Therefore, the Civil Procedure law does not provide

any sanctions if a party delivers false explanations. These explanations are not taken

into account because if explanations are false, they cannot be approved by other

evidence submitted in the case. Otherwise the question could be valued on forgery of

evidence to be regarded as criminal offence according to the Criminal law.



With regard to the above statement provided by a person in some of the court cases, a

similar argument can be mentioned. If one party has deceived the court, the other party

can file its own explanations with evidence that the information contained in the

statement is contested. In this way the court may establish true circumstances of the

case and inform about the criminal offence admitted by the person if the court was

provided with false information. Section 300 of the Criminal law33 may impose sanction

regarding providing of intentionally false information – a short-term detention or forced

labour, or a fine.



A witness who has been called to court does not have the right to refuse to give

testimony (Paragraph 3 of Section 105 of CPL), except clergymen – regarding facts,

which have come within their knowledge through hearing confessions, and persons

whose position or profession does not permit them to disclose certain information

entrusted to them – regarding such information, minors – regarding facts that testify



33 Krimināllikums (Criminal law) (17 June 1998), Latvijas Vēstnesis, nr. 199/200, 1998.7.jūlijs.

24





Part I


against their parents, grandparents, brothers or sisters; persons whose physical or mental

deficiencies render them incapable of appropriate assessment of facts relevant to the

matter; and children under the age of seven (Section 106 CPL).



There is ongoing discussion whether and under which circumstances a lawyer can be

involved as a witness.34 Section 6 of the Advocacy Law of the Republic of Latvia

expressly prohibits requesting information and explanations from advocates as well as

interrogate them as witnesses regarding facts which have become known to them in

providing legal assistance. There are no expressis verbis exemptions in CPL regarding

lawyers, physicians etc., but they can be regarded as persons who cannot disclose

confidential information that they have received during fulfilment of their professional

duties (Paragraph 1 of Section 106 of CPL).



Documentary evidence shall be submitted by way of original, or true copy, copy or

extract certified in accordance with the specified procedures. If a part of a written

document or of other written matter is sufficient to clarify facts meaningful in the

matter, an extract there from may be submitted to the court (Section 111 of CPL).



A court or a judge is entitled to require, pursuant to a substantiated request from a

participant in the matter, documentary evidence from the State and local government

institutions and from other natural or legal persons (Section 112 of CPL).



Real evidence is defined as tangible things that may, due to their properties,

characteristics or very existence, be useful in clarifying facts, which are significant in a

matter (Section 115 of CPL).



The term “opinion of an authority” can be somewhat misleading. In fact such opinion

enjoys no more “authority” than any other evidence. For instance, in cases over

patentability of invention the opinion of the Patent Board was heard as an opinion of the

authority. This opinion, in turn, was contested by expert-examination. The court has a

final word as to which evidence should be regarded as truthful and which to be rejected.



4.5

Formally Prescribed Type of Evidence



Civil Procedure law does not contain any exceptions as to by what means of proof, in

case of a dispute, particular facts shall be proved. Participants of the case may use all

admissible means of proof, but material norms may contain individual evidence that

would include certain fact, while non-existence of such particular evidence does not

deprive the party choosing a number of indirect evidences that allows drawing

necessary conclusions on the particular facts. Still, it should be taken into account that

in cases when the law provides adjudication in written proceedings, participants of the

case have restricted chances to apply other means of proof except written ones. The



34 Neatkarīgā Rīta Avīze Latvijai: Prokuratūra spiedusi advokātu liecināt pret klientu,

http://www.jpa.gov.lv/informacija-presei/neatkariga-rita-avize-latvijai-prokuratura-spiedusi-

advokatu-liecinat-pret-klientu (accessed 20 Feb. 2014).





Part I


25




court may determine oral proceedings in such court cases at its own initiative if it is

necessary for the sake of interests of the case.



4.6

Proving of Rights Arising Out of a Cheque or Bill of Exchange



On January 4, 2014 amendments were introduced in the category of Undisputed

Compulsory Execution of Obligations providing that upon filing the application, it shall

be attached by a protested paper promissory note – a bill of exchange (promissory

note), its certified copy and the act of protested promissory note in a paper form, but

according to a protested electronic promissory note – an electronic bill of exchange and

electronic act of the protested paper.



4.7

A Party Presents in the Proceedings Various Evidence: Witnesses,

Authenticated Documents, Private Documents and Expert Opinion



Participants of the case may apply and submit to the court different kind of evidence,

however, the court has the right, guided by the principle of economy of the civil

procedure, to apply in the case the submitted direct evidence containing the most

complete and most credible information on the facts to be proved. If authentic

documents are filed in the case, they will give the most complete information in the

process of assessing evidence. Still, the court may also assess private documents,

witness testimonies and expert opinions.



In view of the fact that witnesses applied by a party shall be summoned to the court in

order to provide their testimonies as well as expert opinions are appointed by the

decision of the court, the court has the right to dismiss request by participants of the

case on the use of such evidence.



Upon choosing the evidence, parties shall also consider in what kind of proceedings the

case will be reviewed. Depending on it, witness testimonies may be excluded as the

means of proof because according to Section 105 of CPL, witnesses shall give their

testimony orally. Written testimonies are not admissible.



In performance of obligations through the court the main accent is put on execution of

particular payment obligations. Thus the party is obliged to attach to the statement of

claim a document that would confirm such obligation – an act that is subject to

undisputed compulsory execution or its copy.



In reviewing cases in general proceedings or in special proceedings, all means of proof

provided by the Civil Procedure law are admissible.



4.8

Duty for Parties to Produce or Deliver Evidence. The Consequences for

Breach



Duty to submit evidence is imposed upon each party of the dispute. Written evidence

shall be submitted in their original form or in the form of a duly made copy or excerpt.

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Part I


Observing of the form of evidence is the duty of a party. In case such evidence is

necessary to prove some meaningful fact in the case, but a party cannot get access to it

due to classified information, the party may request the court to require it from other

persons or from the opposite party based on a motivated request.



Witnesses are announced by a party by stating in the application what kind of facts or

their absence may be testified by the witness. Witnesses are summoned to the court after

the party has paid up the state duty regarding summoning of the witness.



Expertise is announced by a party by specifying questions to be posed to the expert. The

court shall decide on such request by formulating questions in the decision to be posed

to the expert. Expert takes up his/her duties after the party has paid up the expert

expenses.



In case a party fails to submit necessary evidence, the court has the right to indicate that

in respect of any of the facts, on which the claims or objectives of the party are based,

no evidence is submitted and it shall notify the parties thereof and, if necessary, set a

time period within which evidence is to be submitted. If evidence is not filed, the case is

reviewed based on the existing evidence.



Particular facts or events, as per law, may be proved only by certain type of evidence.

E.g. if the law requires a written form for a certain type of agreement, then concluding

of such agreement may be proved only by presenting a written document. Such

requirements are set forth for lease agreements of dwelling premises, construction

agreements, public procurement agreements. If the written agreement was not

concluded or it was lost or it cannot be filed due to other reasons, it is possible to

attempt to prove existence of such agreement by other means of proof, e.g. witness

testimonies, factual actions, other documents confirming execution of the agreement.



By certain means of evidence – public acts – there are proved those facts that relate to

changes in the civil status of physical persons (birth, death, marriage etc.), in relation to

establishment of legal entities, reorganisation, liquidation, appointment of officials etc.,

changes in ownership rights to the objects subject to public registration – immovable

property, means of transport, industrial property (patents, trademarks, designs).



4.9

Duty for Third Persons to Deliver Evidence. Consequences for Breach



Civil procedure law provides that the court has the right to require written evidence

from other persons if such request has been made by a party in the case in a motivated

request and by indicating due to what reasons the party itself could not obtain the

necessary evidence. The state and local government institutions and other natural or

legal persons which cannot submit the required documentary evidence, or cannot submit

such within the time limit specified by the court or the judge, shall notify the court

thereof in writing, stating their reasons. Civil Procedure law does not envisage

consequences for failure to perform the court’s decision, still the court has the right to

apply administrative sanction for disrespecting the court.





Part I


27




5

General Rule on the Burden of Proof



5.1

Main Doctrine Behind Burden of Proof Rules in the Country



Paragraph 1 of Section 93 of the Latvian Civil Procedure Law expressly states that each

party shall prove the facts upon which they base their claims or objections. Plaintiffs

shall prove that their claims are well-founded. Defendants shall prove that their

objections are well-founded.



Evidence shall be filed by parties and other participants of the case, but only the court

may establish which material filed by the parties shall be valued as evidence in the case.



The duty to submit evidence is imposed upon such participants of the case as plaintiffs,

defendants, third persons without independent claims and third persons with

independent claims. In cases when the prosecutor has brought action in the civil matter,

also he/she is under the duty to file evidence. Such occasions are precisely defined

under Paragraph 2 of Section 90 of CPL:

1) it is necessary in order to protect the rights and interests of the State or of local

governments set out in law;

2) there has been violation of the rights, or interests protected by law, of persons

lacking capacity to act, disabled persons, minors, prisoners or other such persons as

have limited means to protect their rights; or

3) in conducting an inspection of public prosecutors, a breach of law is ascertained.



Still the most essential burden of proof is laid exactly upon the plaintiff and the

defendant. Legal literature has expressed opinion that „the burden of proof is division of

heaviness of the burden of proof between the parties by assuming that each party is

interested in clarification of those factual circumstances before the court based on which

it grounds its claims.”35



In labour law infringements on some occasions there is specified a different burden of

proof from that defined in the Civil Procedure law.



Section 125 of the Labour Law36 is one of such exceptions describing when the initial

burden of proof is laid upon the employer, i.e.:

1) that a notice of termination of an employment contract has a legal basis and

complies with the specified procedure for termination of an employment contract;

2) that, when dismissing the employee, he or she has not violated the right of the

employee to continue employment legal relationships.



If the claim is raised based on Paragraph 3 of Section 29 of the Labour Law, then in

case of dispute, an employee indicates conditions which may serve as a basis for his or

her direct or indirect discrimination based on gender and the employer has a duty to

prove that the discriminating attitude is indirect and there is a differential treatment



35 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 340. lpp.

36 Darba likums (Labour Law) (20 June 2001 ), Latvijas Vēstnesis, nr. 105, 2001.6.jūlijs.

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Part I


based on objective circumstances not related to the gender of the employee, or also that

belonging to a particular gender is an objective and substantiated precondition for

performance of the relevant work or the relevant employment.



The subjective viewpoint of the employee about the possible differential attitude shall

be disproved by the employer by evidence that is at his/her disposal and would prove

the opposite. However, also in this case the employee shall first indicate to the factual

circumstances of discrimination in order to put the employer under the burden of proof.

It is similar with cases concerning prohibition to exercise punishment upon the

employee or in other words – directly or indirectly cause for the employee unfavourable

circumstances because the employee in admissible way uses his/her rights within legal

labour relations (Section 9 of the Labour Law) since also in these cases the burden of

proof concerning the mentioned circumstances is laid upon the employer.37 It means

that when action is brought to the court in matters where the burden of proof is imposed

upon the employer, the employee must take into account that also he/she shall

participate in proving his/her arguments, considerations and potential evidence that is in

his/her possession to ground what he/she is stating.38



5.2

Proof Standards in the Legal System



Paragraph 1 of Section 8 of CPL provides that the court shall clarify the circumstances

of a matter, examining evidence, which has been obtained in accordance with the

procedures prescribed by law.



The Supreme Court of the Republic of Latvia has stated that „when hearing the case, the

court shall clarify those circumstances which are subject to the burden of proof – the

basic facts of the claim and the basic facts of the defendant’s objections (facts to be

found). Facts to be found are defined by the parties, but the composition of facts to be

proved in the case, shall be finally set forth by the court according to those substantive

legal norms whose hypothesis contain facts which define the disputed and infringed

rights of the parties and respective obligations.”39



Standard of the proof is incorporated under Paragraph 1 of Section 97 of CPL stating

that a court shall assess the evidence in accordance with its own convictions, which

shall be based on evidence as has been thoroughly, completely and objectively

examined, and in accordance with judicial consciousness based on the principles of

logic, scientific findings and observations drawn from every-day experience.





37 Ose D., Pierādīšanas pienākums atsevišķu kategoriju lietās, Daugavpils Universitātes 52.

Starptautiskās zinātniskās konferences rakstu krājums, (Daugavpils Universitātes Akadēmiskais

apgāds „Saule”, 2010), 1298.-1306. lpp.

38 Ose D., Darba strīdu izskatīšana un prasības pieteikumu sagatavošana (Latvijas Brīvo

arodbiedrību savienība, 2013), 29. lpp.

39 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 21. marta

spriedums lietā Nr. SKC-98/2012, www.at.gov.lv/files/uploads/files/archive/department1/2012/

98-skc-2012.doc (accessed 13 June 2014).





Part I


29




Paragraph 1 of Section 95 of CPL provides that the court shall admit only such kind of

evidence as provided by law. While Paragraph 2 of Section 95 provides that facts that,

in accordance with law may be proved only by particular kind of evidence, may not be

proved by any other kind of evidence.



In this way, each party of the dispute shall file only those evidences that are obtained in

the due procedure both as to their form and as to the kind of their obtaining so that the

court gets sufficient conviction about circumstances of the case.



The court shall substantiate their arguments in the operative part of the adopted

judgment by those evidences that were recognized as most appropriate, thorough and

credible. Such duty also arises from Paragraph 5 of Section 193 of CPL where it is

stated that the court in the reasoned part of the judgment shall state the facts established

in the matter, the evidence on which the conclusions of the court are based, and the

arguments by which such evidence, or other evidence, has been rejected.



5.3

Rules Exempting Certain Facts from the Burden of Proof (Recognized

Facts, Well Known Facts)



Paragraph 1 of Section 96 of CPL provides: If the court acknowledges a fact to be

universally known, it need not be proved.



It is left for discretion of the court which of the facts in dispute should be regarded as

universally known. For instance, empirical facts whose knowledge is rooted into

personal experience of the judge are recognised by the Latvian doctrine40 as well as by

case law41 as such that no additional evidence is necessary.



There is no need to prove something that is presumed by law. Such presumptions for

example can be found in Latvian Civil Law:

146 As the mother of a child shall be recognised the woman who has given birth to the

child, which is certified by statement from a physician.

148 The paternity presumption may be contested in court.

378 A missing person may be declared presumed dead:

1) if he or she have gone missing on a battle-field and within a two year period after

the end of active hostilities there is no news of him or her; and

2) if he or she were in a ship or an aeroplane disaster or had found himself or herself in

other mortal danger and within a six month period there is no news of him or her.

918 Every possession shall be deemed legal and in good faith, so long as it is not proved

otherwise.

990 (3) Goods or any other property with the mark of the acquirer thereon shall be

deemed to have been delivered and to have passed into the ownership of the acquirer, so

long as the contrary has not been proven.



40 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 335. lpp.

41 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2011. gada 18. maija

spriedums lietā Nr. SKC-863/2011, www.at.gov.lv/files/uploads/files/archive/department1/2011/

skc-863-11j.doc (accessed 13 June 2014).

30





Part I


994 Only such persons shall be recognised to be the owners of immovable property, as

are registered in the Land Register as such owners.

1841 (2) If the debt document has been returned to the debtor, or destroyed, or crossed

out, or torn, or shredded it shall be presumed therefrom that the debt has been paid; this

shall not, however, revoke the right to prove the contrary.



It is almost universally recognized by the legal doctrine that in case of violation of

certain prohibition, the fault of the responsible person is presumed.



Pre-conditions for civil liability are unjustifiable action by the one who infringes the

law, existence of damage, causal link between damage and inadmissible action.42 A

different opinion, by changing his earlier view, has been expressed by Prof. K. Torgāns

disputing the presence of fault as a pre-condition for civil liability.43



One can come across the court decisions which do not presume existence of fault but

state that fault must also be proved. For instance: “The cassation appeal correctly states

that in order for a claim for damages to be satisfied, it is not sufficient that the existence

of loss is determined. It is also necessary to establish material preconditions, namely, an

unlawful act or failure to act by a person, the fault of such person, existence of the loss

and the amount of the loss, and causation between the unlawful act or failure to act and

the loss suffered...” (Judgment of the Civil Law Department of the Senate of the

Supreme Court, Case SKC-699, 9 December 199844).



But such decision should be regarded merely as an exclusion from the routine practice.



There are specific presumptions prescribed by other laws, for instance, it is regarded

that presumption of fault prevails in cases of unfair competition.45



Very recently the court has found that the executive of the company is presumed to be at

fault for losses caused to the creditors of the company.46



42 Sinaiskis V., Latvijas civiltiesību apskats, Lietu tiesības, saistību tiesības (Latvijas juristu

biedrība, 1996), 142. lpp.; skat. arī: Bitāns A., Civiltiesiskā atbildība un tās veidi (AGB, 1997),

101.-120. lpp.

43 Torgāns K. Vainas vai attaisnojuma meklējumi civiltiesībās, http://www.juristavards.lv/doc/

109206-vainas-vai-attaisnojumu-meklejumi-civiltiesibas/ (accessed 25 June 2014 ); skat. arī:

Torgāns K., The Concept of Fault of Commercial Transactions in the Commercial Law of Latvia,

Humanities and Social Sciences, Latvia, Riga, University of Latvia, 3 (40), p. 96-109 (2003), p.

96-109; Torgāns K., Saistību tiesības I daļa, Mācību grāmata (Tiesu nama aģentūra, 2006), 209.

lpp.

44 Latvijas Republikas Augstākās tiesas Senāta 1998. gada 9. decembra spriedums lietā SKC-699,

Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta spriedumi un lēmumi (Tiesu

nama aģentūra, 1999), 385.-389. lpp.

45 Rasnačs L., Vainas nozīme atbildības piemērošanā par negodīgas konkurences aizlieguma

pārkāpumiem, Aktuālas tiesību realizācijas problēmas, Latvijas Universitātes 69. konferences

rakstu krājums (LU akadēmiskais apgāds, 2011), 48.-58. lpp.

46 Latvijas Republikas Augstākās tiesas Civillietu departamenta 2014. gada 15. janvāra spriedums

lietā SKC-101/2014, (accessed 13 June 2014).





Part I


31




Another case when a party is exempted from a burden of proof is when certain facts of

the case have been established pursuant to the judgment that has come into lawful force

in another civil matter involving the same parties (Paragraph 2 of Section 96 of CPL).



As to the court judgements in criminal matters, a prosecutor’s injunction regarding

punishment as well as a decision on termination of criminal proceedings for reasons

other than exoneration, they shall have the prejudicial meaning and shall be binding on

a court adjudicating a matter regarding civil legal liability of the person regarding whom

the relevant adjudication was made, only with respect to the issue of whether a criminal

act, or failure to act, occurred and whether such has been committed, or respectively

been allowed, by the same person (Paragraph 3 of Section 96 of CPL).



With regard to the court judgments in administrative matters, the borders of their

binding force in civil matters are not set forth by law. It means that on prejudicial

meaning of the judgment in administrative matters shall decide the court who is

reviewing the civil case in view of connection of particular circumstances of the

respective administrative and civil case. Rulings, administrative acts and documents

issued by the state and municipal institutions and other law protection instances

(arbitration courts, parish courts, labour dispute commissions etc.) does not have

prejudicial meaning in the court when civil matters are reviewed.47



According to Paragraph 4 of Section 96 of CPL the facts, which in accordance with law

are deemed to be established, need not be proved. Such assumption may only be

disputed in accordance with general procedures. This is called legal (legitimate)

presumption (in Latin – paresumptio iuris) – recognition of a fact to be undisputable

until the opposite is proved.48 Such presumptions are provided in material legal norms,

e.g. in the Civil law of Latvia, and releases one of the parties from the burden of proof.

For instance, Section 148 of the Civil Law provides that a farther of a child born in

marriage shall be a husband of the mother of the child, the so-called presumption of

paternity. At the same time – since the presumption is an assumption based on

likelihood, it may never exclude another likelihood, namely – that the presumed fact

does not exist. Thus the opposite party shall always have the right to challenge the

presumption and prove the opposite,49 e.g. by disputing the presumption in the court.



A party need not prove the facts, which in accordance with the procedures set out in this

Law, have not been disputed by the other party (Paragraph 5 of Section 96 of CPL). The

other party can dispute facts on which, for example, the claimant grounds his/her claim

by submitting oral or written explanations to the court. In application of this norm not

only the form of challenging (explanations) is important, but also observing of the time

allocated for such challenging. On expiry of the term, the fact becomes undisputed and

the party, who has grounded its claims or objections on it, is released from proving this



47 Aigars G., Druks-Jaunzemis O., Dudelis M., Fridrihsons I., Gencs Z., Līcis A., Rozenbergs J.,

Saulīte R., Torgāns K., Višņakova G., Zāģeris A., Civilprocesa likuma komentāri (Trešais

papildinātais izdevums, Tiesu namu aģentūra, 2006), 181. lpp.

48 Turpat, 181. lpp.

49 Turpat, 181. lpp.

32





Part I


fact.50 Undisputing of a fact shall be distinguished from recognition of the fact.

Undisputing shall release the party from proving the fact, but does not make this fact

established. Recognition is the means of proof that may give basis for the court to

establish this fact as proved (Paragraph 2 of Section 104 of CPL).51



5.4

Extent of the Duty to Contest Specified Facts and Evidence Regulated in the

Legal System



Burden of proof starts with a claim by a party the credibility of which is substantiated

with respective evidence. In a civil matter the plaintiff cannot have initiation of the case

only by a claim on infringement of his/her civil rights or interests protected by law.

Each claim shall be followed by respective evidence on factual circumstances included

in the subject of the burden of proof. It is highlighted in the works by many scientists

that until the moment when the plaintiff has grounded his/her claim, the defendant shall

not prove anything.52



Paragraph 2 of Section 148 provides that in the explanations the defendant shall state:

1) whether he or she admits the claim fully or in a part thereof;

2) his or her objections against the claim and substantiation thereof;

3) evidence corroborating his or her objections against the claim and their

substantiation, as well as the law on which they are based;

4) petitions regarding acceptance of evidence or requiring thereof; and

5) other facts which he or she considers significant in adjudicating of the matter.



Submitting of the defendant’s explanations regarding the claim raised by the plaintiff is

stated as a duty whose failure may be subject to imposing fine from the defendant up to

150 euro (Paragraph 1 of Section 150 of CPL53).



The opposite party has the right not only to contest the facts and evidence indicated by

the other party, but also recognise them. Paragraph 2 of Section 104 of CPL states that

if one party admits the facts on which the claims or objections of the other party are

based, a court may find such facts to be proven, if the court is not in doubt that the

admission was not made due to the effects of fraud, violence, threat or error, or in order

to conceal the truth. Such admission is not evidence itself, but is releasing the opposite

party from the burden of proof.54





50 Turpat, 182. lpp.

51 Aigars G., Druks-Jaunzemis O., Dudelis M., Fridrihsons I., Gencs Z., Līcis A., Rozenbergs J.,

Saulīte R., Torgāns K., Višņakova G., Zāģeris A., Civilprocesa likuma komentāri (Trešais

papildinātais izdevums, Tiesu namu aģentūra, 2006), 182. lpp.

52 Līcis A., Prasības tiesvedībā un pierādījumi (Tiesu namu aģentūra, 2003), 72. lpp., kā arī

Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 341. lpp.

53 If a participant in a matter without a justified reason fails to submit explanations, does not reply

to a request by the judge within the time period set by the judge, the judge may impose a fine not

exceeding 150 euro on him or her.

54 Līcis A., Prasības tiesvedībā un pierādījumi (Tiesu namu aģentūra, 2003), 97. lpp.





Part I


33




If one party admits the facts on which the claims or objections of the other party are

based, a court may find such facts to be proven, if the court is not in doubt that the

admission was not made due to the effects of fraud, violence, threat or error, or in order

to conceal the truth (Section 104 (2)).



V. Bukovskis claimed that in case of collision between admittance of certain claims by

the party on the one hand and the conviction of the court which contradicts that

admittance on the other, the decisive role must be devoted to the former rather than

latter. In his understanding the admittance makes an obstacle to the court to upheld its’

conviction.55



More recently some authors have expressed different view. They insist that the court

must contemplate admittance of the claim by the party in the context of all evidence

gathered by the court during a hearing rather than take such admittance for a face

value.56



In my opinion the view expressed by V. Bukovskis more corresponds with the principle

of adversarial proceedings. Also the courts in most cases will consider such admittance

as sufficient and will act in accordance with the view by V. Bukovskis.



5.5

The Doctrine of iura novit curia



Iura novit curia is known in the Latvian civil procedure providing that the court shall

indicate in the judgment meaningful circumstances in the case that are substantiated by

evidence. Section 192 of CPL provides that the court shall make a judgment regarding

the subject-matter of the claim set out in the action, and on the basis specified in the

action, not exceeding the extent of what is claimed; while Paragraph 5 of Section 193 of

CPL states that in the reasoned part the court shall state the facts established in the

matter, the evidence on which the conclusions of the court are based, and the arguments

by which such evidence, or other evidence, has been rejected. This part shall also set out

the regulatory enactments by which the court was guided, and a judicial assessment of

the facts determined in the matter, as well as the conclusions of the court regarding the

validity or invalidity of the claim. If the defendant has fully recognised the claim, the

reasoned part of the judgment shall include only an indication of the regulatory

enactments, which the court has acted pursuant to.



It means that the court may choose appropriate legal norms to use in substantiation of

the judgment depending on what meaningful facts were established in the case. Such

statement is also expressed in the judgement made by the Supreme Court of the

Republic of Latvia concluding that the fact that the application of claim does not contain

reference to Sections 1405 and 1410 of the Civil law, has no meaning in the opinion of

the Senate because according to the legal doctrine „(...) reference to law and even

misreference does not deprive the plaintiff of possibility to have protection of fair trial,



55 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 374. lpp.

56 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 287. lpp.

34





Part I


even more so because jura novit curia – the court itself shall know the law and shall

apply it not only literary, but also according to its sense.” (see V. Bukovskis.

Civīlprocesa mācības grāmata. Rīga: E. Pīpiņa un J. Upmaņa grāmatu un nošu

spiestuve, 1933., 305. lpp.)57



Section 5 of CPL provides provisions for application of legal norms:

Application of Legal Norms

(1) Courts shall adjudge civil matters in accordance with laws and other regulatory

enactments, international agreements binding upon the Republic of Latvia and the legal

norms of the European Union.

(2) If different provisions are provided for in an international agreement, which has

been ratified by the Parliament than in Latvian laws, the provisions of the international

agreement shall be applied.

(3) If the relevant issue is regulated by legal norms of the European Union, which are

directly applicable in Latvia, the Latvian law shall apply insofar as it allows the legal

norms of the European Union.

(4) In specific cases specified in laws or agreements, the courts shall also apply the laws

of other states or international legal norms.

(5) If there is no law regulating disputed relations, the courts shall apply a law

regulating similar legal relations, but if no such law exists, the courts shall act in

accordance with general legal principles and meaning.

(6) In applying legal norms, the court shall take into account case law.



Still, parties of the dispute shall take into account that initially, when the plaintiff brings

action to the court, he/she is obliged to point to all aspects of the dispute by making

precise references to norms of material law regulating the obligation.58



5.6

The Court’s Duty to Advise the Party if the Facts Claimed by a Party and

the Proposed Evidence are Incomplete



Paragraph 4 of Section 93 of CPL states that if the court admits that in respect of any of

the facts, on which the claims or objectives of the party are based, no evidence is

submitted, it shall notify the parties thereof and, if necessary, set a time period within

which evidence is to be submitted. The Latvian court practise has recognized that it is a

procedural violation if the court has dismissed the plaintiff’s claim due to failure for

substantiated evidence, instead of pointing to shortage of evidence.59





57 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 1. februāra

spriedums lietā Nr. SKC-10/2012, www.at.gov.lv/files/uploads/files/archive/department1/2012/

10-skc-2012.doc (accessed 13 June 2014).

58 Aigars G., Druks-Jaunzemis O., Dudelis M., Fridrihsons I., Gencs Z., Līcis A., Rozenbergs J.,

Saulīte R., Torgāns K., Višņakova G., Zāģeris A., Civilprocesa likuma komentāri (Trešais

papildinātais izdevums, Tiesu namu aģentūra, 2006), 216. lpp.

59 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 8. decembra

spriedums lietā Nr. SKC-1594/2012, www.at.gov.lv/files/uploads/files/archive/department1/2012/

1594-skc-2012.doc (accessed 13 June 2014).





Part I


35




If, during deliberation, the court finds it necessary to determine new facts that are

significant in the matter or to further examine existing or new evidence, it shall resume

the adjudicating on the merits of the matter (Paragraph 1 of Section 188 of CPL).



5.7

Means of Court to Induce Parties to Elaborate on Claims and Express an

Opinion on Any Factual or Legal Matter



The court has several procedural means at its disposal to enhance active participation of

the parties in the proceedings. Section 133 of CPL states that a judge may leave the

statement of claim not proceeded and give time to the plaintiff that is not less than 20

days to eliminate defects established in the statement of claim if the statement of claim

is not drafted according to the requirements of the Civil Procedure law or it lacks all

written documents.



Paragraph 3 of Section 133 provides if a plaintiff rectifies the deficiencies within the

time limit set, the statement of claim shall be regarded as submitted on the day when it

was first submitted to the court; Paragraph 4 of 133, in turn, states that if a plaintiff does

not rectify the deficiencies within the time limit set, the statement of claim shall be

considered not to have been submitted and shall be returned to the plaintiff.



The defendant is obliged to file its explanations regarding the raised claim according to

Paragraph 2 of Section 148 of CPL and indicate his/her objections, if any, and also

submit evidence which grounds these objections.



Paragraph 4 of Section 149 of CPL provides that the judge is entitled to require from the

participants in the matter written explanations in order to clarify circumstances of the

matter and evidence. Explanations and evidence shall be submitted within the time

period specified by the judge.



Pursuant to Section 149.1 the judge is entitled to appoint a preparatory sitting to

interview participants in the matter regarding the substance of the matter in order to

clarify the subject-matter and limits of the dispute, explain to the participants in the

matter their procedural rights and duties, the consequences of performing or failing to

perform procedural actions.



Section 150 of CPL lists procedural sanctions that may be applied by the court to the

plaintiff and the defendant:

(1) If a participant in a matter without a justified reason fails to submit explanations,

does not reply to a request by the judge within the time period set by the judge, the

judge may impose a fine not exceeding 150 euro on him or her.

(2) If a participant in a matter without a justified reason fails to attend the preparatory

sitting, the judge may impose a fine not exceeding 150 euro on him or her.

(3) If the defendant has failed to submit explanations, has failed to attend the

preparatory sitting and has failed to notify the reason for his or her failure to attend, the

court upon the request of the plaintiff may render a default judgment at the preparatory

sitting.

36





Part I


5.8

Submission of Additional Evidence



The court may indicate to any of the facts on which no evidence is submitted, but

referred to in the explanations, according to Paragraph 4 of Section 93 of CPL. Still the

court is not entitled to point to some particular evidence to be submitted in the case. It is

up to the parties what evidence is to be filed.



Evidence shall be submitted not later than fourteen days before a court sitting, unless

the judge has set another time period within which evidence is to be submitted

(Paragraph 3 of Section 93 of CPL).



When evidence is submitted in the court sitting, it may hinder adversarial principle for

the opposite party, therefore, the court must postpone the hearing to a later date so that

the other party may examine the filed evidence and submit its counter evidence. The

latest moment to file potential evidence in the court and to request evidence from other

persons is until accomplishment of adjudication of the matter on the merits. Such

conclusion arises from Paragraph 1 of Section 183 of CPL which states that after all

submitted evidence has been examined, the court shall ascertain the opinion of the

participants in the matter regarding the possibility of closing the adjudicating on the

merits of the matter.



The party may request the court to require evidence that is in possession with other

persons or with the opposite party. Such right is envisaged by Section 112 of CPL:

(1) A court or a judge is entitled to require, pursuant to a substantiated request from a

participant in the matter, documentary evidence from State and local government

institutions and from other natural or legal persons.

(2) Participants in a matter, who request the court to require documentary evidence,

shall describe such evidence and provide their reasons for presuming that the evidence

is in the possession of the person referred to.

(3) State and local government institutions and other natural or legal persons which

cannot submit the required documentary evidence, or cannot submit such within the

time limit specified by the court or the judge shall notify the court thereof in writing,

stating their reasons.

(4) If a party refuses to submit the documentary evidence required to the court, without

denying that the party possesses such evidence, the court may find as proved facts

which the opposite party sought to prove by referring to such documentary evidence.



If a court invites (not orders) the party to submit additional evidence (and the court may

do so only if it concerns the fact on which a party is relying on, but which is unproved)

and the party does not submit any evidence in respect of the fact referred to by the court,

the court will make its decision in the case based on evidence already submitted. For the

party it means that the court probably will find its position unproved due to lack of

evidence and make unfavourable decision in respect of that party.



In case the court or a judge has required documentary evidence from the State and local

government institutions and from other natural or legal persons by an order pursuant to





Part I


37




a substantiated request from a participant in the matter, and if a party refuses to submit

the documentary evidence required by the court, without denying that the party

possesses such evidence, the court may find as proved facts which the opposite party

sought to prove by referring to such documentary evidence.



Also when a party does not fulfil the court’s order to submit certain documents, the

court may also impose a fine in the amount not exceeding EUR 150,00.



5.9

Court’s Initiative to Collect Evidence in Civil Cases (e.g. for the Protection

of the Public Interest or in Family Matters)



The court on its own initiative may collect evidence only in matters where interests of

an under-aged child, arising from the trusteeship and access rights, shall be protected,

and the Orphan’s Court is requested to provide its opinion. Such regulation arises from

Paragraphs 1 and 2 of Section 239 of CPL:

(1) In matters regarding dissolution or annulment of marriage the court on its own

initiative shall require evidence, especially for deciding of such issues which affect the

interests of a child.

(2) In issues regarding granting custody rights, childcare and exercising of access rights

the court shall require an opinion by the Orphan’s Court and summon a representative

thereof to participate in the court sitting, as well as the opinion of the child shall be

clarified if he or she is capable to formulate it taking into account his or her age and

degree of maturity.



Similar norms are incorporated under Paragraphs 1 and 2 of Section 2445 of CPL:

(1) In matters that arise from custody and access rights, the court on its own initiative or

the request of an interested person shall request evidence.

(2) In matters that arise from custody and access rights, the court on its own initiative or

the request of an interested person shall request an opinion by the relevant Orphan’s

Court and summon a representative thereof to participate in the court sitting, as well as

the opinion of the child shall be clarified if he or she is capable to formulate it taking

into account his or her age and degree of maturity.



In the matters related to restrictions of a person’s legal capacity due to disorders in

mental health or other illnesses, the court may order the custody court to file opinion on

the person for whom the legal capacity shall be restricted as well as the court itself

requires a statement from the doctor on assessment of health of the respective person

and in case of need, also requires psychological or psychiatric expertise. The court’s

initiative to collect evidence in these matters does not restrict participants to also collect

evidence and file them to the court.



Paragraphs 4 and 5 of Section 266 state that:

(4) When hearing the case, the court on its own initiative shall require statement from

the medical institution and other evidence from the applicant and institutions necessary

to establish the amount of restriction of legal capacity.

38





Part I


(5) The court, on preparing the case for the hearing, may convene the preparatory sitting

and in case of shortage of evidence appoint additional expertise or request other

evidence.



In other categories of cases, the court is not entitled on its own initiative collect

evidence, however, is entitled, based on the request of a participant in the case, to

require evidence from the other party or third persons if the participant of the case, due

to objective reasons, may not obtain this evidence himself/herself.



5.10 Additional Submission of the Evidence Due to New Facts



During adjudication of the matter new evidence on facts is possible to be submitted only

before the court of the first instance while the matter is reviewed on merits. Such

provision arises from Paragraph 3 of Section 93 of CPL where it is stated that the court

may set the term to file evidence. If a participant submits evidence after the time period

has expired, the court may refuse to accept evidence.



According to Paragraph 1 of Section 183 of CPL providing that after all submitted

evidence has been examined, the court shall ascertain the opinion of the participants

regarding the possibility of closing the adjudicating on the merits of the matter.



When the matter is heard under appeal proceedings, submission of new evidence is not

admissible, except cases when justifying reasons are established that did not allow

submitting of evidence before the court of the first instance. Such restriction for

submitting evidence is set forth under Paragraph 4 of Section 430 of CPL – if a

participant in a matter submits to or requests in an appellate instance court that evidence

should be examined which the participant was able to submit at the adjudicating of the

matter in the first instance court and if the appellate instance court does not establish

justifying reasons for failure to submit this evidence in the court of the first instance, the

appellate court shall not accept evidence.



5.11 The Right of a Party Charged with the Burden of Proof, Who is Not in

Possession of the Evidence, to Ask the Court to Issue an Order, Addressed

to a Third Person Holding the Evidence



The right to ask the court by an order to require evidence that is in possession of another

person is provided only with regard to written evidence. This norm is consolidated

under Paragraph 1 of Section 112 of CPL stating that a court or a judge is entitled to

require, pursuant to a substantiated request from a participant in the matter,

documentary evidence from the State and local government institutions and from other

natural or legal persons.



Pursuant to Paragraph 2 of Section 112 of CPL participants in a matter, who request the

court to require documentary evidence, shall describe such evidence and provide their

reasons for presuming that the evidence is in the possession of the person referred to.





Part I


39




6

Written Evidence



6.1

The Concept of a Document in the Legal System



Section 110 of the Civil Procedure law gives definition of written evidence:

Documentary evidence is information regarding facts relevant to the matter, which

information is recorded by letters, figures or other written symbols or use of technical

means in documents, in other written or printed matter, or in other relevant recording

media (audio and video recordings, computer diskettes etc.). Video or audio recording is

not considered to be a document in Latvian legal system.



List of written evidence is not exhaustive because if updated technologies appear that

allow fix information, yet are not expressly mentioned in the definition, the term

„technical means” shall include fixing of all possible information. Thus all information

that is in any form fixed in a data carrier shall be considered as written evidence,

including audio records, photos, video records etc.



Understanding of the term „document” in the Latvian legal acts is different and shall be

valued within each separate law. Paragraph 8 of Section 1 of Archive law60 states that a

document is information arisen, received or converted in another form to any

information medium, initiating, continuing, changing or terminating some activity, and

which attests such activity.



Paragraph 1 of Section 1 of the Law on Legal Force of a Document provides that a

document is any written information created by any public or private law subject (e.g.

the state or municipal institution, a legal person of private law, unity of physical or legal

persons, a notary, court enforcement officer) or a physical person.



Electronic evidence is not separately defined in the Latvian Civil Procedure law, still its

meaning is created by regulation contained in other laws. Paragraph 3 of Section 1 of

Electronic Documents Law61 provides that electronic document is any data which is

created, stored, sent or received electronically, which ensures the possibility of utilising

such data for the performance of some activity, realisation of a right and protection.



Paragraph 1 of Section 3 of Electronic Documents Law provides that the requirement

for a document in written form in relation to an electronic document shall be fulfilled if

the electronic document has an electronic signature and the electronic document

conforms to the requirements of other regulatory enactments.



Whereas Paragraph 2 of the above Section states that an electronic document shall be

considered to have been signed by hand if it has a secure electronic signature.





60 Arhīvu likums (Archives law) (11 Feb. 2010), Latvijas Vēstnesis, nr. 35, 2010.3.marts.

61 Elektronisko dokumentu likums (Electronic documents law) (31 Oct. 2002), Latvijas Vēstnesis,

nr. 169, 2002.20.novembris.

40





Part I


Only in individual cases and if the regulatory enactments provide that, in addition to

other requisites for a document to acquire legal effect, it also requires the imprint of a

seal, then this requirement in relation to an electronic document shall be fulfilled if the

electronic document has a secure electronic signature and a time-stamp or electronic

signature (Paragraph 3 of Section 3 of Electronic Documents Law). Thus, if the court

receives written evidence in a form of electronic document, it shall make sure that it

complies with requirements of the Electronic Documents Law – secure electronic

signature and a time-stamp.



According to Paragraph 4 of Section 4 of Electronic Documents Law an electronic

signature is legal evidence and the submission of an electronic document as evidence to

competent institutions has no restrictions, based only upon the fact that:

a) the document is in electronic form; or

b) it does not have a secure electronic signature.



It means that it is only at the discretion of the court to assess degree of credibility of an

electronic document according to the criteria of Paragraph 1 of Section 97 of CPL that a

court shall assess the evidence in accordance with its own convictions, which shall be

based on evidence as has been thoroughly, completely and objectively examined, and in

accordance with judicial consciousness based on the principles of logic, scientific

findings and observations drawn from every-day experience.



Higher degree of credibility will be to the electronic document signed by secure

signature and having the time-seal, but it is also possible to file and assess electronic

documents without secure electronic signature. Still no evidence shall have a

predetermined effect as would be binding upon the court (Paragraph 2 of Section 97 of

CPL).



Electronic written evidence shall also be packages of electronic character and records

(e-mails, twitters in e-environment etc.), digital photos etc. Paragraph 1 of Section 71.2

of Electronic Communications Law62 provides that an electronic communications

merchant shall, upon the request of the court, ensure the provision of the information

regarding the given name, surname or designation and address of the subscriber or

registered user to whom an Internet Protocol (IP) address, user ID or telephone number

was allocated at the time of the connection in order to ensure the protection of the rights

and legal interests of the individual infringed in the electronic environment in the civil

cases. Whereas Paragraph 2 of Section 71.2 of this law states that upon bringing an

action to the court and upon the request of the court, the electronic communications

merchant shall ensure the provision of the information also regarding traffic data having

the importance in the review of the case, disclosure of which has been recognised as

permissible by the court in the case weighing it against the right of the individual to data

protection thereof.





62 Elektronisko sakaru likums (Electronic Communications Law) (28 Oct. 2004), Latvijas

Vēstnesis, nr. 183, 2004.17.novembris.





Part I


41




6.2

Documents for Which a Presumption of Correctness Exists



On assessment of written evidence, the court shall take into consideration provisions

consolidated in special legal norms concerning documents of public credibility.



According to Section 87.1 of Notaries Law the sworn notary shall ascertain the intent of

the participants in the notarial deed and the terms of the transaction, record notifications

by persons clearly and unambiguously, acquaint the participants with the possible legal

consequences of the transaction so that ignorance of laws and lack of experience is not

used against their best interests. Obligation contained in the agreement upon the above

described circumstances shall comply with true will of the contracting parties and shall

be used as evidence. It arises from Paragraph 3 of Section 178 of CPL stating that the

veracity of Land Register entries, notarised documents or other acts certified in

accordance with procedures specified by law may not be disputed. Such may be

disputed by bringing an independent action.



Legal literature has acknowledged that by a document made in public procedure one

understands an act drafted by a competent official or institution (or which has been

drafted with their participation) in the procedure provided by law.63 At the same time it

is explained that the preference that is allocated to public documents by law is based on

presumption that office-holders taking part in drafting these documents, have no interest

in certifying false information and they may be held liable for certifying false

circumstances.64



Similarly to public notaries, also Orphans courts may draft documents of public

credibility according to Section 61 of the Law on Orphans Courts65. Paragraph 2 of

Section 61 of this law provides that certification by the orphans court shall be equalled

with certification made by the public notary.



Public credibility is also determined to information recorded in public registers. Section

1 of the Land Register Law66 states that immovable properties shall be entered in Land

Registers and the rights related thereto shall be corroborated therein. Land Registers

shall be available to everyone and the entries thereof shall be publicly reliable. Section

4.9 of the Law on the Enterprise Register of the Republic of Latvia indicates that records

of the information system of the Enterprise register have public credibility unless other

regulatory enactments provide otherwise.



Information obtained from public registers shall not be proved by other evidence.

However, also this evidence in civil dispute may not be the sole evidence of the fact to

be proved. Since a public document or a record in a public register has lawful

credibility, disputing of a record in a public register or of an obligation established by a



63 Bukovskis V., Civilprocesa mācības grāmata (Autora izdevums, 1933), 392. lpp.

64 Turpat, 392. lpp.

65 Bāriņtiesu likums (Law on Orphan’s Courts) (22 June 2006), Latvijas Vēstnesis, nr. 107,

2006.7.jūlijs.

66 Zemesgrāmatu likums (Land Register Law) (22 Dec. 1937), Ziņotājs, nr. 16, 1993.29.aprīlis.

42





Part I


public document shall be carried out by bringing a new action to the court and by filing

evidence that would prove forgery of the document or establishment of the obligation

through duress, force or fraud.



Practise of the Supreme Court of the Republic of Latvia has recognised that without

bringing separate claim, information contained in a public deed may not be overturned

either by witness testimonies or by a private document67.



Private documents and public documents and records in the civil case are assessed

together according to provisions under Paragraph 1 of Section 97 of CPL, stating that

“A court shall assess the evidence in accordance with its own convictions, which shall

be based on evidence as has been thoroughly, completely and objectively examined, and

in accordance with judicial consciousness based on the principles of logic, scientific

findings and observations drawn from every-day experience”. Private documents have

the same weight of evidence as public documents. Public documents however are

different from private documents in the way they can be contested. Private document

can be contested within the proceedings in which they were filed as evidence. While the

public document can only be contested by raising a separate claim that would obviously

lead to suspension of the main proceedings.



Section 111 of CPL regulates the order and form for submitting written evidence:

(1) In submitting documentary evidence to a court, or requesting the requiring of such

evidence, participants in a matter shall indicate what meaningful facts in the matter such

evidence can attest to.

(2) Documentary evidence shall be submitted by way of original, or true copy, copy or

extract certified in accordance with the specified procedures. If a part of a written

document or of other written matter is sufficient to clarify facts meaningful in the

matter, an extract there from may be submitted to the court.

(3) Original documents, as well as documentary evidence certified in accordance with

prescribed procedures, shall be submitted if laws or international treaties binding on the

Republic of Latvia provide that the particular facts may be proven only with original

documents or with true copies certified in accordance with prescribed procedures.

(4) If documentary evidence has been submitted to the court by way of a true copy,

copy or an extract, the court is entitled to require, pursuant to a substantiated request of

participants in the matter or upon its own initiative, to submit or present the original if it

is necessary for determining the facts in the matter.



Participants of the case may dispute the truth of information contained in the written

document or file application on the forgery of the document. Such activities are

regulated by Section 178 of CPL:

(1) Participants in a matter may dispute the veracity of documentary evidence.

(2) Documentary evidence may not be disputed by the person who himself or herself

has signed such evidence. Such a person may dispute the evidence by bringing an



67 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 18. aprīļa

spriedums lietā Nr. SKC-176/2012, www.at.gov.lv/files/uploads/files/archive/department1/2012/

176-skc-2012.doc (accessed 13 June 2014).





Part I


43




independent action, if their signature was obtained under the influence of duress, threat

or fraud.

(3) The veracity of Land Register entries, notarised documents or other acts certified in

accordance with procedures specified by law may not be disputed. Such may be

disputed by bringing an independent action.

(4) The submitter of disputed documentary evidence shall explain at the same court

sitting whether they wish to use such documentary evidence or whether they request

that it be excluded from the evidence.

(5) If a participant in the matter wishes to use the disputed evidence, the court shall

decide as to allowing its use after comparing such evidence with other evidence in the

matter.



Application on forgery of the document is regulated by Section 179 of CPL:

(1) A participant in a matter may submit a substantiated application regarding forgery of

documentary evidence.

(2) The person who has submitted such evidence may request the court to exclude it.

(3) In order to examine an application regarding forgery of documentary evidence, the

court may order an expert-examination or require other evidence.

(4) If the court finds that the documentary evidence has been forged, it shall exclude

such evidence and notify a public prosecutor about the fact of forgery.

(5) If the court finds that a participant in the matter has, without good cause, initiated a

dispute regarding the forgery of documentary evidence it may impose a fine on such a

participant not exceeding 150 euro.



The court practise has recognised68 that according to the principle of free assessment of

evidence in cases when one evidence contradicts with the other, the court may give

preference to one of such evidences. A judgement can be rendered on basis of such

documents.



6.3

Distinction Between the Evidential (Probative) Value of Public and Private

Documents



Public credibility is possessed by documents made by the state institutions and officials.

Such acknowledgment is expressed in legal publications as well as in court rulings. In

the process of accessing evidence the judges may assign a higher degree of credibility to

a public document over a private document according to Paragraph 1 of Section 97 and

pursuant to the principle of free assessment of evidence.



Section 126 of CPL states that an opinion of an authority, summoned duly, shall be

assessed by the court as evidence. Reasons for a court’s disagreement with such opinion

shall be set out in the adjudication made in the matter. It means that the court, upon

assessing all submitted evidence in context, may recognise that information contained in



68 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2012. gada 5. septembra

spriedums lietā Nr. SKC-366/2012, www.at.gov.lv/files/uploads/files/archive/department1/2012/

366-skc-2012.doc (accessed 13 June 2014).

44





Part I


a public document does not correspond with true circumstances and take into account

other evidence in the case, including information fixed in a private document.



Still also when civil matters are heard, the court takes into consideration

acknowledgments drawn by administrative courts69 that documents made by officials a

priori has public credibility and they may only be contested by filing evidence which

proves it.



6.4

Taking of Written Evidence



The court shall decide issues regarding the appending of documentary evidence to the

file of the case after it has acquainted the participants of the matter with substance of

such evidence and has heard their opinion (Paragraph 1 of Section 176 of CPL). If it is

established that submitted material does not refer to the facts to be proved or they have

defects in their form failing to correspond with requirements of a document having legal

force, the court has the right not to recognise this material as evidence in the case.



It must be noted that all evidence shall be submitted to the court by participants not later

than 14 days before the hearing or in the term set forth by the judge. In this way it is

secured that parties and their representatives in the case may duly, until the date of the

hearing, examine all evidence in the case. Also, in case of necessity and according to

provisions of Section 112 of CPL, they may request the court to require necessary

evidence from the opposite party or other persons. Such regulation is necessary as it is

not always that participants to the proceedings may gather evidence themselves,

especially from the state and municipal institutions provided that such information

contains personal data protected by law. E.g. a party to the case cannot itself require

from the State Revenue Service information on income of another person as it is

information of restricted availability which the State Revenue Service can give to

certain subjects of law, including the courts. Thus, if a party duly motivates necessity to

gather respective information from the State Revenue Service and the court satisfies its

request and requires the mentioned information from the State Revenue Service by a

decision, then it is binding upon this institution. If a party to the proceedings applies

such request with regard to the opposite party and requires the court to oblige it to

submit certain evidence and the court satisfies such request, the opposite party is

obliged to submit the necessary evidence because the court has ruled so. In case the

party does not fulfil the court’s ruling on submission of the evidence, the party may be

subject to penalty up to EUR 150,00.



Section 177 of CPL provides that documentary evidence or the minutes of the

examination thereof shall be read at the court sitting or presented to the participants in

the matter, and, if necessary, also to experts and witnesses.





69 Administratīvās apgabaltiesas 2012. gada 11. decembra spriedums lietā Nr. 142245911,

143/AA43-3371-12/1, http://www.tiesas.lv/files/AL/2012/12_2012/11_12_2012/AL_1112_apg_

AA43-3371-12_1.pdf (accessed 13 June 2014).





Part I


45




A court is not required to read out the written documents in the matter, if the parties

consent thereto and announce that they have examined these documents or such

documents are in their possession. Such provision is consolidated under Section 15 of

CPL as exception from the principle of directness and orality.



Civil Procedure law does not require submitting written evidence in their original form.

Paragraph 2 of Section 111 of CPL states that documentary evidence shall be submitted

by way of original or true copy, copy or extract certified in accordance with the

specified procedures. According to Paragraph 3 of this Section original documents, as

well as documentary evidence certified in accordance with prescribed procedures, shall

be submitted if laws or international treaties binding on the Republic of Latvia provide

that the particular facts may be proven only with original documents or with true copies

certified in accordance with prescribed procedures.



Only in exceptional cases it is admissible to require the participants of the case to file or

present to the court the original document. As per Paragraph 4 of Section 111 of CPL

the court is entitled to require, pursuant to a substantiated request of participants in the

matter or upon its own initiative, to submit or present the original if it is necessary for

determining the facts in the matter.



There is no obligation to the parties to produce evidence.



7

Witnesses



7.1

Duty of a Witness to Testify



A witness who has been called to court does not have the right to refuse to give

testimony, except in the matters prescribed in Sections 106 and 107 of this Law

(Paragraph 3 of Section 105).



Besides, as restricted access information which can affect the taking of evidence shall

be deemed information:

1) which has been granted such status by law;

2) which is intended and specified for internal use by an institution;

3) which is a commercial secret, except in the case where a purchase contract has been

entered into in accordance with the Public Procurement Law or other type of

contract regarding actions with State or local government financial resources and

property;

4) which concerns the private life of natural persons;

5) which is related to certifications, examinations, submitted projects (except projects

the financing of which is expected to be a guarantee provided by the State),

invitations to tender (except invitations to tender, which are associated with

procurement for State or local government needs or other type of contract regarding

actions with State or local government funds and property) and other assessment

processes of a similar nature;

6) which is for official use only; or

46





Part I


7) which are North Atlantic Treaty Organisation or European Union documents, which

are designated as “NATO UNCLASSIFIED” or “LIMITE” respectively. Certain

exemptions are prescribed in relation to professionals like clergymen, which have

come within their knowledge through hearing confessions, and lawyers, physicians

whose position or profession does not permit them to disclose certain information

entrusted to them (Paragraph 1 of Section 106) as well as minors, persons whose

physical or mental deficiencies render them incapable of appropriate assessment of

facts relevant to the matter.



If a clergyman refuses to testify about certain facts, claiming that this is covered by the

secrecy of confession, the court based on Section 106 shall accept such excuse. Before

the court makes its decision, parties are entitled to provide their opinion on whether the

excuse is grounded or not. And if the party considers the decision by the court as

incorrect, it can raise objections in the appellate claim in course of appeal of the

judgement adopted by the first instance court in the matter. There is no judicature on the

question of excusing witnesses from their duty to testify, therefore it is difficult to

answer whether there could be attributed principles or values in course of applying

Section 106 that could out-balance privileges provided in it.



In accordance with the Personal data protection law, the information about a person’s

health is sensitive personal data, processsing of which (including data collection,

registration, recording, storing, arrangement, transformation, utilisation, transfer,

transmission and dissemination, blockage or erasure) is prohibited, except in cases

where:

1) the data subject has given his or her written consent for the processing of his or her

sensitive personal data;

2) special processing of personal data, without requesting the consent of the data

subject, is provided for by regulatory enactments, which regulate legal relations

regarding employment, and such regulatory enactments guarantee the protection of

personal data;

3) personal data processing is necessary to protect the life and health of the data subject

or another person, and the data subject is not legally or physically able to express his

or her consent;

4) personal data processing is necessary to achieve the lawful, non-commercial

objectives of public organisations and their associations, if such data processing is

only related to the members of these organisations or their associations and the

personal data are not transferred to third parties;

5) personal data processing is necessary for the purposes of medical treatment, the

provision of health care services or the administration thereof and the distribution of

means of medical treatment;

6) the processing concerns such personal data as necessary for the protection of lawful

rights and interests of natural or legal persons in court proceedings;

7) personal data processing is necessary for the provision of social assistance and it is

performed by the provider of social assistance services;





Part I


47




8) personal data processing is necessary for the establishment of Latvian national

archive holdings and it is performed by the State archives and institutions with State

storage rights approved by the Director-general of the State archives;

9) personal data processing is necessary for statistical research, which is performed by

the Central Statistics Bureau;

10) the processing relates to such personal data, which the data subject has him or

herself made public;

11) processing of personal data is necessary when carrying out the State management

functions or when collecting information systems set forth by law;

12) processing of personal data is necessary to protect lawful interests of a physical or

legal person when insurance indemnity is required according to the insurance

contract;

13) according to the Law on Rights of Patients, a research is using medical data of the

data subject.



Based on the above, a doctor’s refusal to testify on a person’s treatment or health

condition shall not be always justified. The doctor will have to testify if any of the

exception listed under the Personal data protection law will apply. At the same time, if

information on a person’s health condition is made public unlawfully, i.e. making public

of such information does not refer to any of the mentioned exceptions, the person may

be held administratively liable.



Section 453 of the Latvian Administrative Violations Code prescribes that in case of

illegal release of confidential information obtained in a medical treatment process, a

fine in an amount up to EUR 350 shall be imposed on the medical practitioner.



A sworn advocate may not divulge the secrets of his or her authorising person not only

while conducting the case, but also after being relieved from the conducting of the case

or after the completion of the case. The advocate shall ensure that these requirements

are also observed in the work of his or her staff (Section 67 of the Advocacy Law of the

Republic of Latvia).



As the Advocacy Law applies only to members of the bar association, the above

mentioned exemption does not provide the same privilege to other persons who advise

their clients in Latvia and are entitled to do so (the Latvian legislation does not restrict

the right to provide legal services and a wide range of people, even without necessary

legal training, are providing such services).



As per the Latvian law, the fact that a witness testimony can contain a commercial

secret shall not be basis for release from the duty to testify. Thus, if a representative of a

commercial company refuses giving testimony by referring to a commercial secret, such

refusal shall not be recognised as grounded and the court will not accept it. To protect a

commercial secret, a person may request that a hearing or a part of it shall be declared

as a closed hearing.



48





Part I


Section 22 of the law On the Press and Other Mass Media prescribes that if the person

who has provided the information requests that his or her name is not to be indicated in

a mass medium, this request shall be binding upon the editorial board.



This clause is provided as an example of the exemptions towards a professional as a

witness in recent legal literature.70 However the issue is controversial.



First of all, it is questionable whether the vague and broad prohibition to disclose

sources precludes the court from making to testify a journalist who is aware of the

persons’ wish not to be disclosed. It is questionable whether a journalist, if asked about

the source of the obtained information, can refuse to testify and whether he/she will be

exempt from the liability for refusing to testify. Although he/she definitely should be

regarded as being within range of “persons whose position or profession does not permit

them to disclose certain information entrusted to them” as per Paragraph 1 of Section

106 of CPL, they are not pointed out as persons who may refuse to testify i.e. relatives

in a direct line and of the first or second degree in a collateral line, spouses, affinity

relatives of the first degree, and family members of parties; guardians and trustees of

parties, and persons under guardianship or trusteeship of the parties and persons

involved in litigation in another matter against one of the parties (Section 107 of CPL).



It would be difficult to model a possible courts’ decision if confronted with the

journalist’s refusal to testify based on the above mentioned causes because we have not

come across such situation in the civil cases.



Still there are certain indications that such refusal would not be accepted easily for the

witness in issue. The grounds for such conclusion are a wide range of cases where

journalists71 as well as state officials72 have refused to reveal their sources of

information in criminal procedure. One of such cases eventually ended up with

successfully taking Latvia to the ECHR73 by a journalist. It has proved, on the one hand,

that the principle of discretion has prevailed against all odds and, on the other hand,

representatives of the authorities felt rather unhappy.



It is up to the court to decide whether a person may act as a witness.





70 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 290. lpp.

71 Jelgavas žurnālists neatklāj tiesai savu avotu; policija pratinās vēl vienā lietā,

http://www.delfi.lv/news/national/criminal/jelgavas-zurnalists-neatklaj-tiesai-savu-avotu-policija-

pratinas-vel-viena-lieta.d?id=43871198#ixzz2tyNoP0Tf (accessed 12 Mar. 2014).

72 DP veikusi kratīšanu Mēkona kabinetā un dzīvesvietā; meklējot informācijas avotu noklausās

žurnālistus,

http://www.diena.lv/latvija/zinas/dp-veikusi-kratisanu-mekona-kabineta-un-

dzivesvieta-meklejot-informacijas-avotu-noklausas-zurnalistu-14036871

(accessed

12

Mar.

2014).

73 European Court of Human Rights 73469/10 Nagla v. Latvia, http://hudoc.echr.coe.int/sites/eng/

pages/search.aspx?i=001-122374#{%22itemid%22:[%22001-122374%22]} (accessed 13 June

2014).





Part I


49




If a person wishes to refuse his/her role as a witness, he/she has to appear before the

court anyway, because if a person called as a witness does not appear and the court

recognises the person’s refusal to appear as a witness as ungrounded, the witness may

be subject to paying penalty up to EUR 60. Likewise, the court may decide on forced

summoning of a person to the court.



For refusal to testify for reasons which the court has found unjustified, and for

intentionally providing false testimony, a witness is liable in accordance with the

Criminal Law” (Paragraph 1 of Section 109 of CPL). The criminal liability is prescribed

by Section 300 of the Criminal Law (Penal Code). There are certain criteria of such

liability, i.e., if the person summoned as a witness presented the facts which did not take

place or on the contrary failed to present some facts of which he/she was aware given

that the facts were relevant in the case and could influence the outcome in the case.74



If a witness, without justified cause, fails to attend the hearing pursuant to a summons

by a court or a judge, the court may impose a fine not exceeding 60 euro on him or her,

or have them brought to court by forced conveyance (Paragraph 2 of Section 109 of

CPL).



The court can admit that refusal to testify can be justified, for instance, if a person due

to physical condition is unable to recall certain facts.75 Refusal to testify can bring

criminal liability – a short term arrest (from 15 days to 3 months) or fine (three to a

hundred minimum salaries set forth in the Republic of Latvia) (Section 302 the Penal

Code), but only in cases when the court finds refusal unjustified Latvian Criminal law

recognises a person’s right not to testify against himself/herself and his/her relatives

according to the Penal Code (Section 110). Persons accused, detained, spouses, parents,

grandparents, children, brothers and sisters, grandchildren are exempt from such

liability (Section 303 of Penal Code). The court shall decide on a person’s refusal to

give evidence in each particular case taking into consideration all circumstances in the

matter and objections of the parties. Having evaluated the essence of the question, the

court may justify the person’s refusal from giving evidence and in such case release the

person form the status of a witness, or the court may decide on ungrounded refusal to

testify. If the refusal is regarded as unjustified, but the witness is still refusing to give

evidence, the court make adopt ancillary decision on calling of a person to criminal

liability addressed to a competent institution, i.e. investigation institution (the police) or

the prosecutor’s office.



With the permission of the court, participants in a matter may put questions to each

other. The court may reject questions, which are not relevant to the matter (Paragraph 1

of Section 167 of CPL). Section 167 of CPL does not restrict the number of questions to

be asked by the court. Parties also may question each other as long as the court permits

and as far as such questions refer to the subject-matter of the case. According to Section



74 Krastiņš U., Niedre A., Krimināllikuma komentāri, 7. Grāmata, Sevišķā daļa (AFS, 1999), 20.

lpp.

75 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 294. lpp.

50





Part I


171 of CPL „When giving testimony, a witness may use written notes, if the testimony

is in connection with calculations or other data, which are difficult to remember. Such

notes shall be shown to the court and to the participants in the matter and may, pursuant

to a court decision, be appended to the matter file.” In case a person has speech defects,

it is the obligation of the court to provide services of a sign language interpreter who

could explain what is said by the witness.



Before questioning a witness, the court shall determine their identity and warn them on

their liability for refusing to testify or for knowingly false testimony, as well as explain

the substance of Section 107 of CPL .i.e. to acquaint the witness with lawful rights to

refuse from testifying in cases set forth by law.



General order for questioning the witnesses is set forth in Section 170 of CPL. For more

detail see chapter 8.4 The Hearing. For giving knowingly false testimony in the court

and being warned on criminal liability for giving knowingly false testimony, there is

envisaged criminal liability – a person may be deprived of liberty (from 15 days to 3

months) or community service (from 40 to 280 hours) or a fine (three to a hundred

minimum salaries set forth in the Republic of Latvia) (Section 300 of Penal Code).



8

Taking of Evidence



8.1

Sequence of Evidence taking



Latvian CPL does not provide for any regulation in respect of the mandatory sequence

in which different types of evidence should be taken. But there are some rules for taking

definite type of evidence, like parties’ explanations and testimonies of the witnesses. In

the doctrine there is a view that “In reviewing civil matters the procedure for assessment

of evidence is not of that great importance as in criminal matters, and usually not much

attention is devoted to this regulation in the court practise, still in individual cases

determining of the procedure for assessment of evidence may turn out to be important

for clarification of factual circumstances of the case.”76. It might explain such content

regulation of CPL in that respect.



The law states that at first parties give their explanations to the court and submit their

petitions if any. After that it is determined by the court in accordance with Section 168

what would be the procedure for the examining of witnesses and experts and for

examination of other evidence. Before court makes such decision parties are allowed to

express their opinion in question of sequence and order for examining of evidence, but

it is not binding to the court.



CPL provides regulation in what sequence parties give their explanations and witnesses

are questioned. According to Section 162 in a court sitting participants in the matter

shall provide explanations in the following order: plaintiffs, third persons with



76 Aigars G., Druks-Jaunzemis O., Dudelis M., Fridrihsons I., Gencs Z., Līcis A., Rozenbergs J.,

Saulīte R., Torgāns K., Višņakova G., Zāģeris A., Civilprocesa likuma komentāri (Trešais

papildinātais izdevums, Tiesu namu aģentūra, 2006), 253. lpp.





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51




independent claims, defendants. If a third person without an independent claim

participates in the proceedings, he or she shall provide explanations after the plaintiff or

after the defendant, depending on whose side the third person participates in the matter.



As to the examination of the witnesses, law provides that the witnesses designated by

the plaintiff shall be examined first and the witnesses designated by the defendant

thereafter. The order of the examination of the witnesses designated by a party shall be

determined by the court, taking into account the opinion of such party (170 (2)). With

the permission of the court, participants in the matter may put questions to the witness.

Questions shall be put first by the participant at whose request the witness was called,

and thereafter by other participants in the matter (170 (5)).



In respect of examination of an expert opinion, CPL states that the court and the

participants in the matter may put questions to the expert in the same order as with

respect to witnesses (CPL 175 (2)).



Written evidence – documents in the matter with consent of the parties may not be read

out by a court in accordance with Section 15 (1), which is very common for civil cases

as usually parties get acquainted with materials of the case before the court session and

they are known to the parties. In some cases parties ask court to read out only separate

documents or even parts thereof. It corresponds to the principle of procedural economy.



8.2

Bringing of the Evidence in Court, Appearance of the Witnesses and

Experts (or Other Objects) Before the Court



The parties themselves bring evidence to the court. The parties also provide the court

with details regarding evidence the parties cannot deliver themselves, like invitation of a

witness, requests for experts, the evidence which can be possessed by third persons. In

all above mentioned cases the party who considers that the evidence in issue should be

obtained points it out in relevant application. The court, provided that the above

mentioned application is reasonable, invites the witness, appoints experts, orders the

third person to provide the evidence which is in third persons’ possession. The

interested party covers respective expenses.



Documentary evidence or the minutes of the examination thereof shall be read at the

court sitting or presented to the participants in the matter, and, if necessary, also to

experts and witnesses (Paragraph 1 of Section 177 of CPL).



Personal correspondence may be read at an open court sitting only with the consent of

the persons involved in such correspondence. If no such consent has been given, or if

the persons are deceased, such evidence shall be read and examined in a closed court

sitting (Paragraph 2 of Section 177 of CPL).



Participants in a matter may dispute the veracity of documentary evidence (Paragraph 1

of Section 178 of CPL).



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Section 93 was substantially changed only recently, imposing more stringent rules for

the parties and obliging courts to inform the parties if there is no sufficient evidence to

support their case (Section 93 (33) (4) CPL.



As pointed out in legal literature, the parties presenting additional evidence which in

turn led court hearing to long delay is “illness” of Latvian judicial system.77



Court is entitled to impose a fine on guilty party in amount up to 750 euro (Section 93

(32).



Theoretically the court is in a position to impose the above mentioned fine each time

when it finds out that there was presented a claim which was not supported by relevant

evidence which lead to postponement of the case. However court is entitled to impose

such fine only if it considers the causes of delay as no excuse. In practice courts are

rather hesitant to impose such fine.



On the one hand, the need for additional evidence is sometimes used as a potential

weapon to get court hearing postponed in order to gather necessary documents,

witnesses etc.



On the other hand, the delay is not always intentional. Sometimes the party is compelled

to ask the hearing been postponed in order to gather additional evidence due to new

arguments put forward during a hearing by a counterparty.



It is always tricky to find the right distinction between the two.



Burden of proof usually is put on the claimant. The defendant has the duty to prove only

the facts on which his denial of the claim is based. The defendant has to respond to the

declaration of claim by submitting a written explanation within 15-30 days (the term

usually ordered by the court when sending the declaration of the claim to the

defendant), counting from the day when the statement of claim was served to the

defendant (Section 148 CPL).



However there can be legal presumptions which put the burden of proof on the

defendant as soon as declaration of claim is submitted to the court. For instance, each

person has the right to bring court action for the retraction of information that injures his

or her reputation and dignity, if the disseminator of the information does not prove that

such information is true (Section 2352.1 CL). If relevant claim is presented then this is

up to the defendant to prove that such information is true;78 claim for alimony for the

child triggers the defendants’ burden to prove the amount of income in case if he

contests the amount of alimony claimed by the other parent.79



77 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 259. lpp.

78 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 257. lpp.

79 Turpat, 256. lpp.





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8.3

Deadline for Taking of Evidence



In order to commence the proceedings in reasonable time and to prevent unjustified

postponements of the court hearings there is a general rule that all the evidence should

be submitted to the court 14 days before the hearing or in some cases in a term specified

by the court (Section 93 (3) and (4)). In case of providing the term by the court, the

court makes its decision known to the parties in writing if the term is determined outside

the hearing, or orally, if it is announced during the hearing. All the evidence should be

filed in the first instance before court starts adjudication on the matter. Filing of new

evidence in the appellate court is very limited and allowed only in cases when court

finds that not filing of evidence is justifiable or it was impossible for a participant to

submit evidence earlier.



As in every rule there are exceptions, which are incorporated in Section 93 (31): during

adjudicating of the matter in the first instance evidence may be submitted at the

reasoned request of the party or other participants in the matter if it does not impede the

adjudication of the matter or the court finds the reasons for untimely submission of

evidence justified, or the evidence concerns facts which have become known during the

adjudication of the matter.



Same rules are applied in case a party is unable to provide evidence itself and needs to

request the court to require such evidence from third parties, i.e., such request must be

filed reasonable time before the hearing, so that the court could manage to send the

order to provide the evidence and third parties would have sufficient time to fulfil it.



If a party has cause to believe that the submission of necessary evidence on their behalf

may later be impossible or problematic, they may ask for such evidence to be secured

(Section 98 (1)). Applications for securing evidence may be submitted at any stage of

the proceedings, as well as prior to the bringing of an action to a court. The application

for securing evidence shall be decided by a court or a judge within ten days of its

receipt. With a decision by a judge, evidence without summoning potential participants

in the matter may be ensured only in emergency cases, including immediate violations

of intellectual property rights or cases of possible violations or in cases where it cannot

be specified who shall be participants in the matter.



In satisfying an application for securing evidence prior to bringing an action, the judge

shall determine the time period for the submission of the action application not longer

than 30 days. In satisfying an application for securing evidence prior to bringing an

action, the judge may also request that the potential plaintiff pay in a specified amount

of money into the bailiff’s deposit account or provide an equivalent guarantee to ensure

coverage of the losses, which may be caused to the defendant in relation to the securing

of evidence.



Examination of witnesses, as well as inspection on site and expert-examination, shall be

carried out in accordance with the norms of CPL. When it is requested to testify

witnesses, the applicant shall specify the name, surname, personal code and the declared

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Part I


place of living, if known, of the respective person (requisites necessary to send court

summons) as well as shall explain on what important circumstances in the matter the

person may provide evidence.



The minutes of the court sitting and the material collected in the course of securing the

evidence shall be kept until required by the court that adjudicates the matter.



An ancillary complaint may be submitted in regard to a decision by a judge to reject an

application regarding the securing of evidence. If the decision on the securing of

evidence has been taken without the presence of the participants in the matter, the time

period for the submission of the ancillary complaint shall be counted from day of the

issuance or sending of the decision. The court’s decision on refusal to secure evidence

shall be motivated and shall contain all essential obligatory parts of a decision, i.e.

introduction, motivation and the resolution part.



The consequence of not filing the evidence in due term is the rejection of the court to

accept and appendix the evidence. An additional measure is a fine, which may be

imposed to a party not exceeding the amount of 750 euro if court admits that with such

action the adjudication of the matter has been delayed. A decision of the court to refuse

acceptance of evidence may not be appealed, but objections regarding such may be

expressed in an appellate or cassation complaint.



As pointed out in legal literature, the parties presenting additional evidence which in

turn led court hearing to long delay is “illness” of Latvian judicial system.80 On the one

hand, the need for additional evidence is sometimes used as a potential weapon to get

court hearing postponed in order to gather necessary documents, witnesses etc. On the

other hand, the delay is not always intentional. It is always tricky to find the right

distinction between the two.



The consequence of not filing the evidence in due term defined by law or court is the

rejection of the court to accept and appendix the evidence. In this case the court

adjudicates the matter based on evidence already filed. An additional measure is a fine,

which may be imposed to a party not exceeding the amount of 750 euro if court admits

that with such action the adjudication of the matter has been delayed. Theoretically the

court is in a position to impose the above mentioned fine each time when it finds out

that there was presented a claim which was not supported by relevant evidence which

lead to postponement of the case. However court is entitled to impose such fine only if

it considers the causes of delay as no excuse. In practice courts are rather hesitant to

impose such fine. A decision of the court to refuse acceptance of evidence may not be

appealed, but objections regarding such may be expressed in an appellate or cassation

complaint.



Facts established by a court’s ruling in one civil proceedings may be recognised as

proved in other proceedings only in case the proceedings are taking place between the



80 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 259. lpp.





Part I


55




same parties (i.e. there is the same plaintiff and the defendant). Otherwise, reference to a

court’s ruling in different proceedings will not be justified and the facts shall be proved

anew.



8.4

The Hearing



After hearing the explanations and opinion of the participants in the matter, the court

shall determine the procedure for the examining of witnesses and experts and for

examination of other evidence. (Section 168)



Each witness shall be examined separately. (Section 170 (1))



The witnesses designated by the plaintiff shall be examined first and the witnesses

designated by the defendant thereafter. The order of the examination of the witnesses

designated by a party shall be determined by the court, taking into account the opinion

of such party. (Section 170 (2))



Witness examination shall take place in the hearing where the matter is reviewed on its

merits. Participation in the hearing, as well as exercising of any other procedural rights,

including participation in the witness examination and cross-examination, shall be the

right of the party instead of its obligation. Thus, in difference from witnesses, the parties

are invited to court, not summoned. However, if a party decides not to participate in the

hearing, it may do so by warning the court in advance and request the court to review

the matter without its presence. This is one of manifestations of the principle of

disposition.



A witness shall give testimony and answer questions orally. (Section 170 (3))



The court shall determine the relationship of the witness with the parties and third

persons and ask the witness to tell the court everything that he or she personally knows

regarding the matter and to avoid providing information the source of which he or she

cannot identify, as well as expressing his or her own assumptions and conclusions. The

court may interrupt the narrative of a witness, if the witness speaks about facts not

relevant to the matter. (Section 170 (4))



With the permission of the court, participants in the matter may put questions to the

witness. Questions shall be put first by the participant at whose request the witness was

called, and thereafter by other participants in the matter. (Section 170 (5))



The judge may put questions to the witness at any time during the examination of the

witness. During the examination of a witness, questions may also be put to the

participants in the matter. (Section 170 (6))



The testimony of a witness obtained in accordance with the procedures regarding the

securing of evidence or regarding court assignments, or at a prior court sitting, shall be

read during the court sitting at which the matter is being tried (Section 173).

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Part I


If the court adjudicating a matter is unable to collect evidence located in another city or

district, the court or the judge shall assign the performing of specific procedural

activities to the appropriate court (Section 102 (1)).



In the decision on the court assignment, there shall be a succinct description of the

substance of the matter to be adjudicated, circumstances to be clarified, and the

evidence that the court performing the assignment is required to collect. Such a decision

shall be mandatory for the court to which it is addressed and shall be performed within

fifteen days. (Section 102 (2))



Court assignments shall be performed at a court sitting in accordance with the

procedures prescribed by this Law. Participants in the matter shall be notified of the

time and place of the sitting. The failure of such persons to attend is not an impediment

to performance of the assignment. (Section 103 (1))



Minutes and other material of the matter, which have been collected during the

performance of the assignment, shall be forwarded to the court adjudicating the matter

within three days. (Section 103 (2))



Following the court argument, the replies and the opinion of the public prosecutor, the

court shall retire to the deliberation room to render judgment, prior thereto notifying the

persons present in the courtroom thereof. (Section 187)



However, if during deliberation, the court finds it necessary to determine new facts that

are significant in the matter or to further examine existing or new evidence, it shall

resume the adjudicating on the merits of the matter. (Section 188)



Testimony based on information from unknown sources, or on information obtained

from other persons, unless such persons have been examined, is not allowable as

evidence. (Section 105)



An appellate instance court itself shall decide which evidence is to be examined at a

court sitting. (Section 430 (1))



In examining and assessing evidence, an appellate instance court shall observe the

provisions of Section 430 (2).



Facts that have been established by a first instance court are not required to be examined

by an appellate instance court if these have not been contested in the appellate

complaint. (Section 430 (3))



8.5

Witnesses



The facts on which the claim is based are pointed out in the declaration of claim. The

facts on which the denial of the claim is based are pointed out in the explanations of the

defendant. If the party considers that certain facts can be proven by the testimony of the





Part I


57




witness the party must point at this either in the statement of claim (the claimant) or in

the written explanations to the court (the defendant).



CPL prescribes the following: There shall be appended to a statement of claim,

documents which confirm facts on which the claim is based (Section 129 (2)).



The interested party also is responsible for covering the costs for bringing the witness to

the court.



CPL prescribes the following:

Costs related to the adjudicating of matters are:

2) costs related to the examination of witnesses or conducting of inspections on-site

(Section 39 (1)).



Before questioning a witness, the court shall determine their identity and warn them

regarding their liability for refusing to testify or for knowingly providing false

testimony, as well as explain the substance of Section 107 of this Law. (Section 169 (1))



Before being examined, a witness shall sign a warning regarding such substance: “I, . .

(given name and surname of the witness), undertake to testify to the court about

everything I know regarding the matter in which I am called as a witness. It has been

explained to me that for refusing to testify or for knowingly giving intentionally false

testimony I may be criminally liable in accordance with the Criminal Law.” (Section

169 (2))



The warning signed by the witness shall be appended to the minutes of the court sitting.

(Section 169 (3))



The judge shall explain to witnesses who have not attained the age of 14 years, their

duty to testify truthfully and to tell all they know regarding the matter, but shall not

warn such a witness about liability for refusing to testify or knowingly giving false

testimony. (Section 169(4))



Each witness shall be examined separately. (Section 170 (1))



The witnesses designated by the plaintiff shall be examined first and the witnesses

designated by the defendant thereafter. The order of the examination of the witnesses

designated by a party shall be determined by the court, taking into account the opinion

of such party. (Section 170 (2))



A witness shall give testimony and answer questions orally. (Section 170(3))



After examination of identity of participants to the proceedings, including witnesses, the

witnesses shall leave the room of the hearing. When the matter comes to its reviewing

on merits and examination of witnesses starts, they are called to the court-room to give

their testimonies. The witnesses who have already given their testimonies shall stay in

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Part I


the court-room till the end of the hearing as there may occur a situation when it is

necessary to make accurate the already given testimony or pose additional questions.

Witnesses are questioned one by one. Witnesses may leave the court-room before the

end of the hearing only by the permission given by the court.



The question about preparation of witnesses is not regulated in legal acts, i.e. it is

presumed that witnesses are not prepared.



The court shall determine the relationship of the witness with the parties and third

persons and ask the witness to tell the court everything that he or she personally knows

regarding the matter and to avoid providing information the source of which he or she

cannot identify, as well as expressing his or her own assumptions and conclusions. The

court may interrupt the narrative of a witness, if the witness speaks about facts not

relevant to the matter. (Section 170 (4))



With the permission of the court, participants in the matter may put questions to the

witness. Questions shall be put first by the participant at whose request the witness was

called, and thereafter by other participants in the matter. (Section 170 (5))



The judge may put questions to the witness at any time during the examination of the

witness. During the examination of a witness, questions may also be put to the

participants in the matter. (Section 170 (6))



The court may examine a witness a second time during the same or at another court

sitting, as well as confront witnesses with each other. (Section 170 (7))



If the facts for the determining of which witnesses were called have been determined,

the court, with the consent of the participants in the matter, upon taking an appropriate

decision on this, may waive examining the witnesses in attendance. The consent of the

participants in the matter shall be recorded in the minutes of the sitting and shall be

signed by each participant in the matter. (Section 170 (8))



The examination of a minor shall be conducted, at the discretion of the court, in the

presence of a lawful representative or a teacher. Such persons may put questions to the

witness who is a minor. (Section 172 (1))



The testimony of a witness obtained in accordance with the procedures regarding the

securing of evidence or regarding court assignments, or at a prior court sitting, shall be

read during the court sitting at which the matter is being tried. (Section 173)



8.6

Expert Witnesses



A court shall order expert-examination in a matter, pursuant to the request of a party,

where clarification of facts relevant to the matter requires specific knowledge in

science, technology, art or another field. If necessary, a court may order several such

examinations. (Section 121 (1))





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59




Expert-examination shall be performed by experts of relevant expert-examination

institutions or by other specialists. The parties shall select the expert, by mutual

agreement, but if agreement is not reached within the time limit set by the court, the

expert shall be selected by the court. If necessary, several experts may be selected.

(Section 121 (2))



In the court expertise, i.e. an expertise ordered in the court proceedings in accordance

with the CPL, appointment of an expert is made by the court according to its decision.

While the person who is to be appointed as an expert may be suggested either by the

parties, if they reach agreement, or if such agreement can not be reached, it is selected

by the court. There is no difference between the rules governing the taking of evidence

from those selecting an expert by the court and from the expert selected by the parties.



But there can also be a situation that a party submits its privately ordered expert opinion

to the court which is usually done before the court proceedings are started. In such

situation, the “expert opinion” is treated as ordinary written evidence, i.e. a document,

but not as an expert opinion in the sense of Section 121.



Participants in a matter have the right to submit to the court issues regarding which

expert opinion must, in their opinion, be provided. The court shall determine issues

requiring an expert opinion. The court shall indicate grounds for rejection of issues

submitted by participants in a matter. (Section 121 (3))



Parties can present report of private expert as evidence, but it will be regarded as written

evidence, not as expert statement.A court decision on the ordering of expert-

examination shall specify what issues an expert opinion is required in regard to and

whom the performing of the expert-examination has been assigned to. (Section 121 (4))



As stated above, questions to the expert must be approved by the court and the final

wording of the questions is always defined by the court in its decision, although in the

process of appointing an expertise both parties have right to propose their versions of

the questions to the court. Proposals for the questions should be well grounded. If the

parties agree on the questions to be answered during the expertise, the court may take it

into consideration and put these questions into its decision. At the same time the court is

not bound by the proposals of the parties and can formulate its own questions as well.



Expert-examination shall be performed in the court or outside the court if its

performance in the court is not possible or is problematic. (Section 121 (5))



A person selected as an expert shall attend pursuant to a court summons. The expert

may be examined also by using a video conference at the court according to the location

of the expert or at the place specially equipped for such purpose.



If an expert who has been summoned fails to attend the court sitting for reasons that the

court finds unjustified, the court may impose a fine, not exceeding 60 euro, upon the

expert.

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Part I


An expert has the right to review materials in the matter, to question the participants and

witnesses in the matter, and to ask the court to require additional materials.



An expert shall provide an objective opinion, in their own name, and shall be personally

liable for it.



An expert may refuse to provide an opinion, if the material provided for their

examination is not sufficient, or if the questions asked are beyond the scope of the

special knowledge of the expert. In such cases the expert shall notify the court, in

writing, that it is not possible to provide an opinion.



For refusal to perform their duty without justified cause, or for knowingly providing a

false opinion, the expert shall be liable in accordance with the Criminal Law. (Section

122)



An expert may not participate in the adjudicating of a matter, if they have previously

been a judge or a participant in the adjudicating of the matter.



An expert also may not participate in the adjudicating of a matter if:

1) they are or have been, due to their position or otherwise, dependent on a party or

another participant in the matter;

2) there has been, prior to the initiation of the court proceedings, a connection between

a party in the matter being adjudicated and the performance of professional duties by

this expert; or

3) it is determined that the expert is not competent.



Removal of an expert shall be applied for, and a decision made by the court. (Section

123)



An expert opinion shall be reasoned and the basis thereof provided.



An opinion shall be stated in writing and submitted to the court. There shall be included

in an expert opinion a precise description of the examination performed, conclusions

formed as a result thereof, and reasoned answers to the questions asked by the court. If,

in performing the expert-examination, an expert ascertains facts as are significant in the

matter and the expert has not been questioned regarding them, he or she has the right to

indicate such facts in their opinion.



If several experts are selected, they have the right to consult with one another. If the

experts reach a common opinion, all the experts shall sign it. If the opinions of the

experts differ, each expert shall write a separate opinion. (Section 124)



The court shall assess expert opinions in accordance with the provisions of Section 97

of this Law.





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The court shall assess expert opinions in accordance with the provisions of Section 97

of this Law (Section 125), i.e. like all other evidence – in accordance with its own

convictions and in accordance with judicial consciousness based on the principles of

logic, scientific findings and observations drawn from every-day experience. Court is

not bound by the expert opinion.



If the expert opinion is not clear enough or is incomplete, a court may order a

supplementary expert-examination, assigning performance thereof to the same expert.



Where an expert opinion is not substantiated, or the opinions of several experts

contradict one another, the court may order a repeated expert-examination, assigning

performance thereof to another expert or experts. (Section 125)



An expert opinion shall be read at the court sitting.



The court and the participants in the matter may put questions to the expert in the same

order as with respect to witnesses.



In cases referred to in Section 125 of this Law the court may order additional or repeat

expert-examination. (Section 175)



An opinion of an authority, summoned in accordance with the procedures set out in

Section 89 of this Law, shall be assessed by the court as evidence. Reasons for a court’s

disagreement with such opinion shall be set out in the adjudication made in the matter.

(Section 126)



After the evidence has been examined, the court shall hear the opinion of the authorities

participating in the proceedings in accordance with law or a court decision (Section 182

(1)).



The court and the participants in the matter may put questions to representative of such

authorities concerning their opinion. (Section 182 (2)) Expenses for the expertise covers

the party who has made the relevant request. Expenses are paid prior to adjudicating of

a matter upon receipt of the invoice of the expert before the expertise is done.

Additionally, costs for the expert’s accommodation and travel can be compensated if

such occur. If the request for expertise has been submitted by both parties, they shall

pay the required sums equally. The sums referred need not be paid by a party who is

exempted from the payment of court expenses in accordance with provisions of the law

and with the court’s decision. (Section 40)



9

Costs and Language



9.1

Costs



There is a separate chapter in the Civil Procedure law devoted to types of court

expenses, their calculation and payment procedure, exceptions from the general

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Part I


procedural order and other aspects related to court expenses. Paragraph 1 of Section 33

of CPL is subdivided in court expenses and costs related to conducting a matter.

Paragraph 2 of the mentioned section provides that court costs are state fees and office

fees, but costs related to conducting a matter are costs related to assistance of advocates,

to attending court hearings as well as costs related to gathering of evidence.



State fee is a mandatory payment for adjudication of a civil matter and is provided

under the CPL.81 The duty to pay the state fee is laid upon participants of the civil case

according to the order and amount prescribed by the CPL. The law provides three types

pursuant to which the state fee shall be calculated and paid: 1) particular sum of money;

2) percentage out of the statement of claim or out of another sum; 3) combination of

both above mentioned mechanisms.82 It is understandable that calculation of the state

fee is closely related to the concept of the sum of the statement of claim described under

Section 35 of the CPL. This section contains methodology with the help of which the

sum of the statement of claim is calculated on various occasions. It should also be

mentioned that the sum of the statement of claim shall be calculated not only in general

litigations, but also in the matters of specific litigation.83 Legal literature states that it is

a precise calculation of the sum of the claim which further stipulates also admissibility

of the subject-matter of the case in the disputes related to the obligations law.84 Latvian

civil procedure regulation also provides cases when the state fee shall be paid in

addition or repaid. Section 36 of the CPL provides that if the amount claimed is

increased, a supplementary state fee shall be paid accordingly.



Of course, there are cases where it is difficult to evaluate the claim at the moment when

it is filed. Upon such circumstances the judge initially defines the amount of the state

fee that is average; still the final amount of the state fee is defined during adjudication.

Section 37 of CPL prescribes exceptional cases when the already paid-up state fee shall

be repaid fully or partially. E.g. the paid state duty shall be repaid partly if the fee paid

exceeds the fee prescribed by law. State fees shall be repaid on the condition that an

application requesting its repayment has been submitted to the court within one year

from the date when the sum was paid into the state budget (Paragraph 2 of Section 37 of

CPL). State fees shall be repaid from state budget funds only on the basis of a decision

of a court or a judge.



Office fee as a special type85 of the state fee shall be paid: 1) for issuing a true copy of a

document in a matter, as well as for reissuing a court judgment or decision; 2) for

issuing a certificate; 3) for issuing a duplicate of a writ of execution; 4) for certifying

the coming into effect of a court adjudication, if such adjudication is to be submitted to



81 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 106. lpp.

82 Turpat, 109. lpp.

83 Turpat, 113. lpp.

84 Turpat, 114. lpp.

85 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 119. lpp.





Part I


63




a foreign institution; 5) for summoning witnesses86. CPL states that the office fee shall

be paid in a determined amount. It should be noted that there are also other payable

services that may be provided by the Latvian courts.87



List of expenses related to conducting of a matter is given under Section 39 of CPL.

Legal literature has analysed and grouped expenses related to conducting of a matter as

follows: 1) expenses related to execution of a court’s ruling; 2) expenses related to

collection of evidence; 3) expenses related to search for a defendant; 4) expenses related

to informing of participants of the case.88 It should be noted that legal regulation of

calculation and payment procedure is provided not only by the CPL. More detailed

regulation is also contained in a number of the Cabinet provisions.89 Section 40 of CPL

provides procedure according to which expenses related to conducting of a matter shall

be paid.



The duty of payment of these expenses is laid upon that participant of the case who has

requested performance of respective procedural activity unless this participant has been

released from payment of these expenses in the cases as provided by law.90 According

to Paragraph 1 of Section 40 of CPL “(1) Sums of expenditure to be paid to witnesses

and experts or also sums necessary to pay the expenditure for conducting interrogation

of witnesses or on-site inspections, delivery, service and translation of court summonses

and other judicial documents, publication of a notice in newspaper and security for a

claim shall be paid in prior to adjudicating of a matter, by the party who made the

relevant request.”



If the request on performance of a particular procedural activity where expenses related

to conducting a matter shall be paid, has been expressed by the court at its own

initiative, these expenses are covered by the state (Paragraph 4 of Section 40 of CPL).



86 Civilprocesa likuma 38. pants

87 Ministru kabineta noteikumi nr. 96. „Noteikumi par tiesas sniegtajiem maksas

pakalpojumiem” (Provisions regarding payable services provided by courts) (18 Feb. 2013).

Latvijas Vēstnesis, nr. 37, 2013.21.februāris.

88 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 120.-124. lpp.

89 Ministru kabineta noteikumi Nr. 983 „Ar lietas izskatīšanu saistīto izdevumu aprēķināšanas

kārtība” (Procedure for calculating costs related to the adjudicating of matter) (1 Sep. 2009).

Latvijas Vēstnesis, Nr. 141, 2009.4.septembris; Ministru kabineta noteikumi Nr. 510 „Noteikumi

par izpildu darbību veikšanai nepieciešamajiem izdevumiem” (Provisons regarding payment of

expenses necessary for enforcement proceedings) (7 Jan. 2014). Latvijas Vēstnesis, nr. 6,

2014.9.janvāris. Ministru kabineta noteikumi Nr. 217 „Kārtība, kādā zvērinātam tiesu izpildītājam

tiek segti izpildu darbības veikšanai nepieciešamie izdevumi un izmaksāta amata atlīdzība, ja

izpildāms atbildīgās iestādes lēmums par starptautisko organizāciju noteikto sankciju piespiedu

izpildi” (Order of covering expenses necessary for enforcement proceedings and paying

remuneration of bailiff, if a decision of the authority responsible regarding compulsory sanctions

determined by international organisations is being enforced) (25 Mar. 2008). Latvijas Vēstnesis,

Nr. 49, 2008.28.marts, u.c.

90 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 124. lpp.

64





Part I


Latvian regulation of civil procedure contains provisions that also refer to compensation

of court expenses. In general CPL states91 that the party in whose favour a judgment is

made shall be adjudged recovery of all court costs paid by such party, from the opposite

party. If a claim has been satisfied in part, the recovery of amounts set out in this section

shall be adjudged to the plaintiff in proportion to the extent of the claims accepted by

the court, whereas the defendant shall be reimbursed in proportion to the part of the

claims dismissed in the action. Section 42 of CPL provides cases when court expenses

shall be compensated to the state. If a plaintiff is exempted from court costs and the

judgment is made on behalf of the plaintiff – recovery of such court costs to the state

shall be the defendant’s duty. If a claim has been satisfied in part, but the defendant is

exempted from payment of court costs, such costs, in proportion to that part of the claim

which has been dismissed, may be recovered from a plaintiff as is not exempt from the

payment of court costs for payment to the State. If both parties are exempt from

payment of court costs, the court costs shall be assumed by the State.



If a court approves amicable agreement and terminates legal proceedings in a matter, the

court costs that have not been paid previously shall be adjudged from both parties into

the State income in equal amount, unless provided otherwise by the amicable

agreement.



Separate regulation is devoted to compensation of expenses related to conducting of a

matter and it has essential meaning since only expenses listed under Section 44 of CPL

may be reimbursed.92 Reimbursement of these expenses is certainly related to the fact as

to on behalf of which of the parties the judgment has been made, still the law provides a

number of specific provisions that refer to the compensation amount of these expenses.

E.g. the amount to be compensated for advocate’s assistance is closely related to the

sum of the claim, however, the law sets forth the minimum amount of compensation for

such assistance. Expenses due to obtaining written evidence shall be compensated in

their factual amount.



CPL also provides exceptions from the general provisions on the duty for payment of

court expenses. Section 43 of CPL contains regulation which lists those cases when

respective subject is released from the duty to pay for court expenses. For instance, the

following plaintiffs are exempt from paying the court costs to the state: 1) in claims for

recovery of remuneration for work and other claims of employees arising from legal

employment relations or related to such; 2) in claims for recovery of child or parent

support etc. Legal literature has justly stated that regulation which concerns exemption

from court expenses may be found: 1) in Section 43 of CPL; 2) in special norms of CPL

found outside Chapter 4; 3) in other legal acts outside the special norms of CPL.93

Paragraph 4 of Section 43 of CPL provides that a court or a judge, upon considering the

material situation of a natural person, shall exempt him or her partly or fully from

payment of court costs into State revenues, as well as postpone payment of court costs



91 Civilprocesa likuma 41. pants.

92 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 139.-140. lpp.

93 Turpat, 131. lpp.





Part I


65




adjudged into State revenues, or divide payment thereof into instalments. Thus it should

be concluded that the Latvian regulation is quite flexible in the issue on exemption from

court costs.



Finally, it should be highlighted that regulation of Latvian civil procedure provides a

chance to appeal against the court ruling concerning court costs, though this chance is

granted only to the person to whom such ruling is referred to (Section 45 of CPL).



9.2

Language and Translation



In general the Latvian civil procedural regulation94 states that litigation shall take place

in the Latvian language which is the state language.95 It means that one shall use

Latvian in court hearings, procedural documents and all court rulings shall be drafted in

Latvian as well as communication within a civil matter shall be in Latvian.96 It is true

that not all participants of the case know Latvian; therefore the legislator has provided

three exceptional occasions in the CPL where deviations from the general principle are

admissible.97 The law states that: 1) the participants in the matter shall submit foreign

language documents accompanied with a translation thereof into the official language,

certified in accordance with the procedures prescribed by law; 2) the court may also

allow certain procedural actions to take place in another language, if a participant in the

matter pleads therefore and all participants in the matter agree; 3) the court shall ensure

the right of participants in a matter, except representatives of legal persons, who do not

have a command of the language used in the court proceedings to have the aid of an

interpreter.



As ir arises from Paragraph 4 of Section 13 of CPL, the court shall invite an interpreter

if the witness does not know the state language. Failure to observe provisions on the

state language shall be regarded as a procedural violation that may lead to revocation of

the judgment adopted by the court of the first instance and returning of the case to be

adjudicated before the court of the first instance anew (Paragraph 3 of Section 427 (1)

of CPL). Also in the court of cassation instance, if the breach of Section 13 of CPL is

established, the judgement shall be revoked and the case returned for a new adjudication

before the court of appeal (Paragraph 3 of Section 452 (3) of CPL). The legislator has

assigned essential meaning for observation of the language of litigation because

digressions from this regulation are related to meaningful legal consequences. Several

aspects can approve it. First, Sub-paragraph 3 of Paragraph 1 of Section 427 provides

that irrespective of the grounds for the appellate complaint, an appellate instance court



94 Civilprocesa likuma 13. pants; Par tiesu varu (Law on Judicial Power) (15 Dec. 1992),

Ziņotājs, nr. 1, 1993.14.janvāris (21. panta pirmā daļa).

95 Valsts valodas likums (Official Language Law) (9 Dec. 1999), Latvijas Vēstnesis, nr. 428/433,

1999.1.decembris (3., 10., 13. pants).

96 Sk. piem., Rubinšteins G.L., Vai tiesa var nepielaist zvērinātu advokātu uzstāties lietā ar krievu

vai vācu valodā sastādītu pilnvaru, kas izdota Latvijā un Latvijas notāra apstiprināta? 1.-2.

Tieslietu Ministrijas Vēstnesis (1931), 72. lpp.

97 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 57.-59. lpp.

66





Part I


shall by its decision set aside a judgment of a first instance court and send the case for it

to be re-adjudicated in a first instance court, if the appellate instance court determines

that norms of procedural law regarding the language of the court proceedings have been

breached.98 Second, Sub-paragraph 3 of Paragraph 3 of Section 453 of CPL provides

that if norms of procedural law regarding the language of the court proceedings have

been breached, it shall in any event be regarded as a breach of a norm of procedural law

as may have led to an erroneous adjudication of a matter. Upon such circumstances the

court of cassation instance is entitled to establish remarkable violation of procedural

rights and revoke a judgment made by a court of a lower instance. If no obstacles should

be expected regarding the use of the state language in court proceedings in civil matters,

a special attention should be drawn to exceptional cases.



As mentioned before, participants of the case have the right to submit documents also in

foreign languages, but on such occasion duly certified translation shall be attached in

the state language. As per Paragraph 2 of Section 13 of CPL duly certified translations

shall be such as certified according to the Cabinet regulations no 29199 of August 22,

2000, Cabinet regulations no 283100 of April 21, 2008 or according to requirements of

the Notary law.101



The exception out of the general application of the state language provided under

Paragraph 3 of Section 13 of CPL states that the court may also allow certain procedural

actions to take place in another language, if a participant in the matter pleads therefore

and all participants in the matter agree. This exception, according to the content of the

provision, shall be applicable only in case if all preconditions have occurred: 1) only

individual procedural actions may be allowed to be taken in a foreign language, not the

whole civil proceedings; 2) such request is made by one participant of the case at least;

3) all other participants agree to such exception; 4) the court, having evaluated

circumstances, allows digression form the general principle of the state language, which

is not the court’s duty. The exception contained under Paragraph 3 of Section 13 of CPL

may be attributed both to physical and legal persons.102





98 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2007. gada 23. marta

lēmums lietā Nr. SKC – 515/2007, www.at.gov.lv/files/uploads/files/archive/department1/2007/

cd230307_2.doc (accessed 25 Feb. 2014).

99 Ministru kabineta noteikumi nr. 291 „Kārtība kādā apliecināmi dokumentu tulkojumi valsts

valodā” (Procedure for the certification of document translations in offical language) (22 Aug.

2000). Latvijas Vēstnesis nr. 302., 2000.29.augusts.

100 Ministru kabineta noteikumi nr. 283 „Noteikumi par notariālo funkciju veikšanu Latvijas

Republikas diplomātiskajās un konsulārajās pārstāvniecībās” (Provisions regarding performance

of notary functions in diplomatic and consular representatives of the Republic of Latvia) (21 Apr.

2008). Latvijas Vēstnesis, nr. 63, 2008.23.aprīlis.

101 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 58. lpp.

102 Latvijas Republikas Augstākās tiesas Senāta Civillietu departamenta 2004. gada 12. maija

spriedums lietā Nr. SKC – 267, Latvijas Republikas Augstākās tiesas Senāta Civillietu

departamenta spriedumi un lēmumi, (2005), 699.-704. lpp.





Part I


67




The third exception provided by law refers to the right to use the aid of an interpreter in

the cases when participants of the proceedings do not have the command of the

language of litigation. This procedural guarantee was introduced so that any natural

person, who has applied to the court or is in another procedural status in a civil matter,

could effectively exercise his/her rights to fair trial. The law guarantees the right to the

aid of an interpreter in all procedural activities.103 Civil procedure regulation provides

the obligation for the court to explain to the interpreter his/her duties as well as to warn

interpreters that they are liable in accordance with the Criminal Law for refusal to

translate, or for knowingly translating falsely.104 A participant of the case for whom the

right to the interpreter’s aid has been secured, as well as other participants may apply

removal to the interpreter in the cases stipulated by law.105 It should be noted that the

right to the court’s interpreter is not secured for representatives of legal entities because

it is assumed that legal entities may authorise such representatives who know the state

language in the sufficient level or they may provide interpreting at their own cost.106

Finally, attention should be drawn to the fact that in case representation of a participant

in the matter is exercised by an advocate, there cannot be discussion about providing the

interpreter’s services to the advocate.107



Expenses incurred by ensuring that participants of the matter can examine the file of the

matter and participate in procedural activities by using the help of an interpreter, shall

be covered by the state.108



10

Unlawful Evidence



Chapters 15-18 of CPL contain regulation which refers to general provisions on

evidence, securing of evidence, means of evidence, burden of proof ( onus probandi)

and other aspects related to evidence. Latvian civil procedure regulation does not

expressly define the concepts of „illegal evidence” or „illegally obtained evidence” as

well as does not directly regulate issues related to these concepts. However, special

meaning shall be devoted to Section 95 of CPL referring to admissibility of evidence.

The above section states: (1) the court shall admit only such kind of evidence as

provided for by law; (2) facts that, in accordance with law, may be proved only by

particular kind of evidence, may not be proved by any other kind of evidence. Legal

science points out that this section highlights only procedural form of the information

contained in the norm, however, attention should be also drawn to the method of



103 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 58. lpp.

104 Civilprocesa likums, 157. pants.

105 Civilprocesa likums, 21. pants, 160. pants.

106 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 58. lpp.

107 Latvijas Republikas Advokatūras likums (Advocacy Law of the Republic of Latvia) (23 Apr.

1993), Ziņotājs, nr. 28, 1993.19.augusts, (14. panta 5. punkts.). Sal. skat. Latvijas Senāta

Apvienotās sapulces 1924. gada 3. oktobra lēmumu lietā Nr. 11 ( privātadvokāta Bēra Plinera

lieta). Tieslietu Ministrijas Vēstnesis Nr. 7-9, (1925), 69.-72. lpp.

108 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 58. lpp.

68





Part I


obtaining such information.109 Such opinion is closely connected with the provision

under Paragraph 1 of Section 8 of CPL that shall determine circumstances of the case by

examining evidence gathered in the procedure provided by law. Thus CPL in general

determines that the evidence to be examined by the court to establish factual

circumstances shall be legal and shall be gathered in the procedure provided by law and

not contrary to it. Latvian CPL provides the principle of free assessment of evidence

(Section 97 of CPL) as well as obliges the court to examine all evidence that is applied

and has been accepted by the court (joined to the case).110 It follows from the above that

analysis of legality of evidence or their obtaining may take place: 1) when the question

is decided on joining the applied evidence to the case; 2) by assessing evidence through

complicated cognitive process consisting of both logical and lawful aspects.111 The

court shall decide the issue on admissibility of the applied evidence: 1) by adopting

decision on accepting the statement of claim or the application for special litigation and

by initiation of civil proceedings (Sections 129., 131., 133.); 2) by preparing the case for

adjudication (Section 149); 3) by reviewing the case (Section 162). It is true that the

court evaluates lawfulness of the evidence in the case and lawfulness for obtaining this

evidence when assessment of evidence is taking place. It should be noted that

participants of the case, by exercising their procedural rights and performing

obligations, participate in review of the request to join evidence to the case file as well

as in examination of witnesses and have the right to participate in examination of

evidence. Participants of the case have the right to dispute written evidence in the

procedure set forth by Section 178 of CPL or file the application as per Section 179 on

forgery of evidence. Thus lawfulness of evidence or correspondence of evidence to

legal requirements is assessed not only by the court, but also by active participation of

the parties in the proceedings.



Lawfulness of evidence and lawfulness for their obtaining is a complex set of issues

expressed in the most various forms. It is related to analysis of the method of obtaining

evidence and the evidence itself approving information provided by participants on the

method of obtaining particular evidence. E.g. Latvian court practise states that a written

evidence which has been recognised as forged may be used as far as it may be deemed

as lawful (original).112 Thus admissibility of a forged document is possible as long as it

is viewed as original in the sense of expert opinion and the court shall evaluate it, still

the initial admissibility of the content of such document (before the expert opinion) is

not allowed. Thus it may be concluded that Latvian civil procedure regulation does not

directly define illegal evidence and evidence obtained illegally, but these aspects shall

be considered within admissibility of evidence. Analysis of admissibility of evidence

contains not only the type of evidence (as information on a procedural fact), but also

examination of lawfulness for their obtaining.



109 Aigars G., Rozenbergs J., Torgāns K., Civilprocesa likuma komentāri, I daļa (1.-28. nodaļa)

(Editor prof. K. Torgāns, Tiesu namu aģentūra, 2011), 264. lpp.

110 Līcis A., Prasības tiesvedībā un pierādījumi (Tiesu namu aģentūra, 2003), 77. lpp.

111 Turpat, 78.-79. lpp.

112 Latvijas Senāta Civilās kasācijas departamenta 1936. gada 18. decembra lēmums lietā Nr. 484,

Oto Lāča prasības lietā pret Emīlu Matīsu, 81 Valdības Vēstnesis, (1937), 97.-98. lpp.





Evidence in Civil Law – Latvia

J. Rozenfelds, D. Ose & M. Osis





Part II – Synoptical Presentation





1

Synoptic Tables



1.1

Ordinary/Common Civil Procedure Timeline



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.

Bringing of action

Claimant

- to indicate facts on

- to file evidence;

(Prasības celšana)

which the plaintiff grounds

- to file application on

his/her claim as well as to

securing of evidence

join evidence which prove

(Section 98 of CPL);

the facts (Paragraph 5 of

Section 128 (2) of CPL);

- to request the court to

-

require evidence (from

the statement of claim

the defendant or third

should contain documents

persons, including the

which confirm

state and municipal

circumstances on which the

institutions) (Section 93

statement of claim is

(2) of CPL).

grounded (Paragraph 3 of

Section 129 (2) of CPL);

- in case obligations under

Sections 128 and 129 are

not fulfilled, the statement

of claim shall be left as not

proceeded with as per

Section 133 of CPL.





Court

-



prior to the matter being

initiated, evidence shall be

ensured by the district

(city) court in the territory

of which the source of

evidence is located

(Section 98 (3) of CPL).

2.

Preparation of civil

Court

-

- to request response from

to send the statement of

matters for trial

the plaintiff regarding the

claim and the copies of the

(Civillietu

explanations;

attached documents to the

sagatavošana

defendant by specifying the

- to impose fine up to

iztiesāšanai)

term to file written

EUR 150 if a participant

70

Part II – Synoptical Presentation





explanations – 15-30 from

to the matter, without

the day of dispatch of the

justifying reason, does not

statement of claim;

file explanations in the

-

due term, does not

to send a copy of the

respond to the request of

explanations by the

the judge;

defendant to the plaintiff

and third persons (if any);

- to impose fine up to

-

EUR 150 if a participant

to decide on invitation or

to the matter, without

admittance of third

justifying reason, does not

persons;

appear in the preparatory

- to decide on securing of

session.

evidence;

- to decide on summoning

of witnesses;

- to decide on appointment

of expertise;

- to decide on requirement

of written real evidence

and their transfer into the

court’s possession;

- to decide on requirement

of written explanations to

specify circumstances of

the matter and evidence;

- if the court admits that in

respect of any of the facts,

on which the claims or

objectives of the party are

based, no evidence is

submitted, it shall notify

the parties thereof and, if

necessary, set a time period

within which evidence is to

be submitted (Paragraph 4

of Section 93 of CPL).





Claimant

- to answer requests by the

- to submit evidence;

court, including on

- to examine materials of

submission of evidence;

the matter, make copies

- to provide written

and excerpts from them;

evidence at the court’s

- to participate in

request;

examination of evidence;

- to provide response on

- to submit application on

the explanations according

securing of evidence

to the court’s request;

(Section 98 of CPL);

- to appear before the court - to request the court to

as per the court’s request;

require evidence (from

- if a participant in a

the defendant or third

matter without a justified

persons, including the

reason fails to submit

state and municipal

explanations, does not

institutions) (Paragraph 2

reply to a request by the

of Section 93 of CPL);

judge within the time

- to submit evidence in

period set by the judge, the

Part II – Synoptical Presentation

71



judge may impose a fine

the court not later than 14

not exceeding 150 euro on

days before the hearing

him or her (Paragraph 1 of

provided that the judge

Section 150 of CPL).

has not announced a

different term (Paragraph

3 of Section 93 of CPL).





Defendant

- to provide explanations

- to submit evidences;

according to the court’s

- to examine materials of

request;

the matter, makes copies

- to provide written

and excerpts from them;

explanations according to

- to submit application on

the court’s request;

securing of evidence

- to answer the court’s

(Section 98 of CPL);

requirements, including on

- to submit evidence in

submission of evidence;

the court not later than 14

- to appear before the court days before the hearing

as per the court’s

provided that the judge

invitation;

has not announced a

-

different term (Paragraph

if a participant in a

3 of Section 93 of CPL).

matter without a justified

reason fails to submit

explanations, does not

reply to a request by the

judge within the time

period set by the judge, the

judge may impose a fine

not exceeding 150 euro on

him or her (Paragraph 1 of

Section 150 of CPL).

3.

Preparatory hearing

Court

- to decide on invitation or - to impose fine up to

(Sagatavošanās

admittance of third

EUR 150 if a participant

sēde)

persons;

to the matter, without

-

justifying reason, does not

to decide on securing of

appear in the preparatory

evidence;

session;

- to decide on summoning

- to adopt judgment in

of witnesses;

default in the preparatory

- to decide on appointment session if the defendant

of expertise;

has failed to submit

- to decide on requirement

explanations, has not

of written real evidence

arrived in the preparatory

and their transfer into the

session and has not

court’s possession;

informed on the reason of

-

absence.

to decide on requirement

of written explanations to

specify circumstances of

the matter and evidence.





Claimant

- to participate in the

- to examine materials of

hearing;

the matter, make copies

-

and excerpts from them;

if a participant in a

matter without a justified

- to apply petitions:

reason fails to attend the

- on invitation or

preparatory sitting, the

admittance of third

judge may impose a fine

72

Part II – Synoptical Presentation



not exceeding 150 euro on

persons;

him or her (Paragraph 2 of

- on securing of

Section 150 of CPL).

evidence;

- on summoning of

witnesses;

- on appointment of

expertise;

- on requirement of

written real evidence and

their transfer in the

court’s possession.





Defendant

- to participate in the

- to examine materials of

hearing;

the matter, make copies

-

and excerpts from them;

if a participant in a

matter without a justified

- to apply petitions:

reason fails to attend the

- on invitation or

preparatory sitting, the

admittance of third

judge may impose a fine

persons;

not exceeding 150 euro on

him or her (Paragraph 2 of

- on securing of

Section 150 of CPL).

evidence;

- on summoning of

witnesses;

- on appointment of

expertise;

on requirement of written

real evidence and their

transfer in the court’s

possession.

4.

Court hearing

Court

- admits evidences only

- if the court



(Civillietas

set forth by law (Paragraph

adjudicating a matter is

iztiesāšana)

1 of Section 95 of CPL);

unable to collect

-

evidence located in

ensures securing of

another city or district,

evidences at the request of

the court or the judge

the participants to the

shall assign the

matter (Paragraph 3 of

performing of specific

Section 98 of CPL);

procedural activities to

- ensures reading of

the appropriate court

written evidence;

(Paragraph 1 of Section

- gives permission to pose

102 of CPL);

questions to participants of

- the court may reject

the matter;

questions which are not

- ensures reading of

relevant to the matter;

written explanations and

- a judge may pose

their joining to the matter;

questions to the

- after listening to

participants of the matter;

explanations of participants

- if a party refuses to

to the matter and learning

answer a question

their opinion, the court sets

regarding disputable

forth examination

facts, or refuses to

procedure of witnesses and

provide explanations

experts and other

regarding such, the court

Part II – Synoptical Presentation

73



evidences;

may assume that the

-

party does not dispute

warns witnesses on

such facts (Paragraph 3

refusal to give testimony or

of Section 167 of CPL);

on providing false

testimony;

- the court may interrupt

-

the narrative of a witness,

establishes relations of

if the witness speaks

the witness with the parties

about facts not relevant

and third persons, and

to the matter (Paragraph

invites the witness to tell

4 of Section 170 of CPL);

the court everything

personally known in the

- the judge may put

matter without providing

questions to the witness

information whose source

at any time during

may not be specified as

examination of the

well as without expressing

witness (Paragraph 6 of

assumptions and

Section 170 of CPL);

conclusions;

- during examination of

- gives permission to the

a witness, the court may

participants of the matter to

also pose questions to the

ask questions to the

participants of the matter;

witnesses;

- the court may examine

- testimony of a witness

a witness a second time

obtained according to the

during the same or at

procedures regarding

another court sitting, as

securing of evidence or

well as confront

regarding court

witnesses with each other

assignments, or at a prior

(Paragraph 7 of Section

court sitting, shall be read

170 of CPL);

during the court sitting at

- if the facts for

which the matter is being

determining of which

tried (Section 173 of CPL);

witnesses were called

- ensures reading of

have been determined,

expert opinion (Paragraph

the court, with the

1 of Section 175 of CPL);

consent of the

-

participants in the matter,

decides issues regarding

upon taking an

appending of documentary

appropriate decision, may

evidence to the matter file

waive examining the

after it has acquainted the

witnesses in attendance

participants in the matter

(Paragraph 8 of Section

with the substance of such

170 of CPL);

evidence and has heard

their opinion (Section 176

- to decide on appending

of CPL);

of the written notes by

-

the witness to the case

reads documentary

fail;

evidence or the minutes of

the examination at the

- in cases where it is

court sitting or presented to

necessary to determine

the participants in the

facts of a matter, any

matter, and, if necessary,

participant in the matter

also to experts and

or any person present in

witnesses (Paragraph 1 of

the courtroom may,

Section 177 of CPL);

pursuant to a court’s

-

decision, be sent out of

if a participant in the

the courtroom during

matter wishes to use the

examining a witness who

disputed evidence, the

74

Part II – Synoptical Presentation



court shall decide as to

is a minor (Paragraph 2

allowing its use after

of Section 172 of CPL);

comparing such evidence

- to adopt decision on

with other evidence in the

leaving the courtroom

matter (Paragraph 5 of

before the end of the trial

Section 178 of CPL);

taken after hearing the

- real evidence shall be

opinion of the

inspected at the court

participants in the matter

sitting and presented to the

(Section 174 of CPL);

participants in the matter,

- in situations under

and, where necessary, also

Section 125 of CPL, the

to experts and witnesses

court may adopt decision

(Paragraph 1 of Section

on additional or repeated

180 of CPL);

expertise;

- minutes of the

- in order to examine an

inspection of real evidence,

application regarding

written pursuant to the

forgery of documentary

procedures for securing

evidence, the court may

evidence or a court

order an expert-

assignment, shall be read at

examination or require

the court sitting (Paragraph

other evidence

3 of Section 180 of CPL);

(Paragraph 3 of Section

- if documentary or real

179 of CPL);

evidence cannot be brought

- if the court finds that

to the court, the court shall

the documentary

take, pursuant to the

evidence has been

petition of a participant in

forged, it shall exclude

the matter, a decision on

such evidence and notify

inspection and examination

a public prosecutor about

of such evidence at the site

the fact of forgery

where it is located

(Paragraph 4 of Section

(Paragraph 1 of Section

179 of CPL.);

181 of CPL);

-

-

if the court finds that a

notifies participants on

participant in the matter

inspection at the site

has, without good cause,

(Paragraph 2 of Section

initiated a dispute

181 of CPL);

regarding the forgery of

- the course of the

documentary evidence, it

inspection shall be

may impose a fine on

recorded in the court sitting

such a participant not

minutes, to which shall be

exceeding 150 euro

appended plans, technical

(Paragraph 5 of Section

drawings and

179 of CPL);

representations of the real

- in conducting an

evidence drawn up and

inspection on site, the

examined during the

court may summon

inspection (Paragraph 4 of

experts and witnesses

Section 181 of CPL);

(Paragraph 3 of Section

- after all submitted

181 of CPL);

evidence has been

- if a participant in a

examined, the court shall

matter submits evidence

ascertain the opinion of the

after the time period has

participants in the matter

expired, and the court

regarding possibility of

does not find the reasons

closing adjudicating on the

for untimely submission

Part II – Synoptical Presentation

75



merits of the matter

of evidence justified, the

(Paragraph 1 of Section

court shall impose the

183 of CPL);

participant in the matter a

-

fine up to EUR 750

if it is not necessary to

(Paragraph 32 of Section

examine additional

93 of CPL);

evidence, the court shall

determine whether

- to adopt decision on

plaintiffs maintain their

refusal to accept evidence

claim and whether the

( Paragraph 33 of Section

parties wish to enter into a

93 of CPL ).

settlement (Paragraph 2 of

Section 183 of CPL);

- if during the court’s

deliberation, the court finds

it necessary to determine

new facts that are

significant in the matter or

to further examine existing

or new evidence, it shall

resume adjudicating on the

merits of the matter

(Paragraph 1 of Section

188 of CPL);

- a court shall assess

evidence in accordance

with its own convictions,

which shall be based on

evidence as has been

thoroughly, completely and

objectively examined, and

in accordance with judicial

consciousness based on the

principles of logic,

scientific findings and

observations drawn from

every-day

experience.(Paragraph 1 of

Section 97 of CPL).





Claimant

- the duty to prove that

- the right to file

their claims are well-

application on securing

founded (Paragraph 1 of

of evidence (Paragraph 1

Section 93 of CPL);

of Section 98 of CPL);

- explanations shall

- the right to file their

comprise all facts on the

explanations in writing;

basis of which their claims

- the right to ask

are grounded;

questions to witnesses

- if a documentary

upon the court’s

evidence is submitted

permission;

which is disputed, shall

- the right to ask

explain at the same court

questions to the expert

sitting whether to proceed

upon the court’s

with using such evidence

permission;

or requests it be excluded

from the evidence

- the right to dispute

(Paragraph 4 of Section

truthfulness of written

evidence;

76

Part II – Synoptical Presentation



178 of CPL);

- the right to file a

- if a participant in a

motivated application on

matter submits evidence

forgery of written

after the time period has

evidence (Paragraph 1 of

expired, and the court does

Section 179 of CPL);

not find the reasons for

- the right to request the

untimely submission of

court to exclude written

evidence justified, the court

evidence if application is

shall impose the participant

filed regarding its forgery

in the matter a fine up to

(Paragraph 2 of Section

EUR 750 (Paragraph 32 of

179 of CPL);

Section 93 of CPL).

- the right to provide

explanations on real

evidence, express their

opinion and requests

(Paragraph 2 of Section

180 of CPL);

- if documentary or real

evidence cannot be

brought to the court, the

court shall take, pursuant

to the petition of a

participant in the matter,

a decision on inspection

and examination of such

evidence at the site where

it is located (Paragraph 1

of Section 181 of CPL);

- during adjudicating of

the matter evidence may

be submitted upon

reasoned request of the

party or other participants

in the matter if it does not

impede the adjudication

of the matter or the court

finds the reasons for

untimely submission of

evidence justified, or the

evidence concerns facts

which have become

known during the

adjudication of the matter

(Paragraph 31 of Section

93 of CPL).





Defendant

- the duty to prove that

- the right to file

their objections are well-

application on securing of

founded (Paragraph 1 of

evidence (Paragraph 1 of

Section 93 of CPL);

Section 98 of CPL);

- explanations shall

- the right to file their

comprise all facts on the

explanations in writing;

basis of which their

- the right to ask

objections are grounded;

questions to witnesses

- if a documentary

upon the court’s

evidence is submitted

permission;

Part II – Synoptical Presentation

77



which is disputed, shall

- the right to ask

explain at the same court

questions to the expert

sitting whether to proceed

upon the court’s

with using such evidence

permission;

or requests it be excluded

from the evidence

- the right to dispute

(Paragraph 4 of Section

truthfulness of written

178 of CPL);

evidence;

- if a participant in a

- the right to file a

matter submits evidence

motivated application on

after the time period has

forgery of written

expired, and the court does

evidence (Paragraph 1 of

not find the reasons for

Section 179 of CPL);

untimely submission of

- the right to request the

evidence justified, the court

court to exclude written

shall impose the participant

evidence if application is

in the matter a fine up to

filed regarding its forgery

EUR 750 (Paragraph 32 of

(Paragraph 2 of Section

Section 93 of CPL).

179 of CPL);



- the right to provide

explanations on real

evidence, express their

opinion and requests

(Paragraph 2 of Section

180 of CPL);

- if documentary or real

evidence cannot be

brought to the court, the

court shall take, pursuant

to the petition of a

participant in the matter, a

decision on inspection

and examination of such

evidence at the site where

it is located (Paragraph 1

of Section 181 of CPL);

- during adjudicating of

the matter evidence may

be submitted upon

reasoned request of the

party or other participants

in the matter if it does not

impede the adjudication

of the matter or the court

finds the reasons for

untimely submission of

evidence justified, or the

evidence concerns facts

which have become

known during the

adjudication of the matter

(Paragraph 31 of Section

93 of CPL).

5.

Judgment

Court

- the court shall ground

- the court that renders a

(Spriedums)

the judgment on the facts

judgment in a matter is

established in the matter by

entitled, upon its own

78

Part II – Synoptical Presentation



evidences. In a judgment a

initiative or pursuant to

court shall not disclose

the application of a

information that is a

participant in the matter,

subject matter of an official

to render a supplementary

secret, but indicate that it

judgment if judgment has

has become acquainted

not been rendered

with such information and

regarding any of the

assessed it (Section 190 of

claims for which the

CPL);

participants have

-

submitted evidence and

the descriptive part shall

provided explanations

set out the claim of the

(Paragraph 1 of Section

plaintiff, the counterclaim

201 of CPL);

of the defendant,

objections, and the

- the court may

substance of the

recognise a fact as

explanations provided by

universally known

participants in the matter

(Paragraph 1 of Section

(Paragraph 4 of Section

96 of CPL).

193 of CPL);

- the reasoned part shall

state the facts established

in the matter, the evidence

on which the conclusions

of the court are based, and

the arguments by which

such evidence, or other

evidence, has been rejected

(Paragraph 5 of Section

193 of CPL);

- a court shall set out in its

judgment why it has given

preference to one body of

evidence in comparison to

another, and has found

certain facts as proven, but

others as not proven.

(Paragraph 3 of Section 97

of CPL).





Claimant

- after a judgment has

- the right to request

entered into lawful effect,

explain the judgment;

the participants in the

- the right to request to

matter or their successors

adopt ancillary judgment;

in interest are not entitled

to dispute at other court

- the right to appeal

proceedings the facts

under cassation

established by the court

proceedings;

(Paragraph 3 of Section

- the right to request the

203 of CPL).

Prosecutor General to

submit protest regarding

the enforced judgement

which has been reviewed

only before the first

instance court and where

substantial violations of

material and procedural

norms were admitted;

Part II – Synoptical Presentation

79



- to the right to request

to hear the matter anew

due to newly discovered

facts.





Defendant

- after a judgment has

- the right to request

entered into lawful effect,

explain the judgment;

the participants in the

- the right to request to

matter or their successors

adopt ancillary judgment;

in interest are not entitled

to dispute at other court

- the right to appeal

proceedings the facts

under cassation

established by the court

proceedings;

(Paragraph 3 of Section

- the right to request the

203 of CPL).

Prosecutor General to

submit protest regarding

the enforced judgement

which has been reviewed

only before the first

instance court and where

substantial violations of

material and procedural

norms were admitted;

- to the right to request

to hear the matter anew

due to newly discovered

facts.

1.2

Basics about Legal Interpretation in Latvian Legal System



There is application procedure of legal norms in the Latvian legal system.



Section 5 of CPL provides basic principles for application of legal norms without

distinction of interpretation of substantive or procedural norms.



The most exhaustive regulation of application of legal norms can be found under

Sections 15 and 17 of the Administrative Procedure law which not only provides mutual

hierarchy of acts (Paragraphs 1-4 of Section 15), provisions to solve their inner

disagreement (Paragraphs 5-12 of Section 15), but also interpretation methods and

analogy of legal norms (Section 17).



80

Part II – Synoptical Presentation



1.3

Functional Comparison



Legal

Regulation

Means

Multilateral

Regulation

National Law

Bilateral Treaties

of Taking

Treaties

1206/2001

Evidence

1. A court shall,

1. A court shall,

Note: See the

1. The court decides

upon its own

upon its own

information

on taking of

initiative or upon a

initiative or upon a

provided in

evidence in a foreign

substantiated

substantiated

Section “Bilateral

country and submits

request of a

request of a

treaties”

requests of Latvia

participant in the

participant in the

for taking of

matter in the cases

matter in the cases

evidence directly to

and in accordance

and in accordance

the foreign country

with the procedures

with the

or Ministry of

provided for in this

procedures

Justice (Paragraph 2

Law, decide an

provided for in this

of Section 685);

issue on a request

Law, decide an

2. A request of a

of Latvia for taking

issue on a request

foreign country for

of evidence

of Latvia for taking

taking of evidence

(Paragraph 2 of

of evidence

and documents

Section 706);

(Paragraph 2 of

appended thereto, as

2. Legal

Section 695);

well as notifications

assistance shall

2. A request for

court shall be

take place only by

taking of evidence

prepared in writing

mediation of the

and the documents

in the language of

Ministry of

appended thereto

the Member State

Justice or other

shall be prepared

receiving the request

Hearing of

competent

and submitted in

or in the language

Witnesses by

institutions;

the language that

which the relevant

Mutual Legal

3. The content of

has been

country has notified

Assistance

the request for

determined as the

as acceptable for

(Legal Aid)

taking of evidence

language for

communication

is set forth by

communication in

(Paragraph 1 of

Section 708 of

the application of

Section 687);

CPL, i.e. there are

the international

3. The request of

no blank forms

agreements

Latvia for taking of

(International

binding on the

evidence shall be

agreements on

Republic of Latvia

signed by a judge

legal assistance as

(Section 697);

and approved by the

well as the

With regard to

seal of a court

Council

bilateral

(Paragraph 1 of

Regulation No

international

Section 687);

1206/2001 contain

treaties on legal

4. In the cases

such forms);

assistance, the

provided for in this

4. A request of

legal cooperation

Law a court, upon its

Latvia for taking of

shall only take

own initiative or

evidence and

place by

upon a substantiated

documents

mediation of the

request of a

appended thereto

Ministry of

participant in the

shall be prepared

Justice or other

matter, may require

and submitted in

competent

in a request of

the official

institutions.

Latvia for taking of

language

evidence:

appending a

1) to permit the

Part II – Synoptical Presentation

81



translation in any

participants in a

of the following

matter or their

languages:

representatives to be

1) in the language

present or participate

of the country

in taking of evidence

addressed;

in accordance with

2) in another

Article 11 of

language, upon

Council Regulation

mutual agreement

No 1206/2001;

by competent

2) to permit court

authorities of

representatives to be

Latvia and foreign

present or participate

country thereon.

in taking of evidence

(Paragraph 1 of

in accordance with

Section 709).

Article 12 of

Council Regulation

No 1206/2001

(Section 688).

5. the request shall

be made and

examination carried

out as per Article 4

of Regulation

1206/2001

6. the request and all

documents

accompanying the

request shall be

exempted from

authentication or any

equivalent

formalities.

1. See Points 1-4

1. See Points 1-3 in



1. See Points 1-6 in

in the table section

the table section

the table section

above;

above;

above;

If necessary, an

2. If necessary, an

2. (2) If necessary,

interpreter shall

interpreter shall

an interpreter shall

participate in

participate in

participate in taking

taking of evidence

taking of evidence

of evidence in Latvia

in Latvia or in a

in Latvia or in a

or in a foreign

foreign country,

foreign country,

country using

using technical

using technical

technical means.

Hearing of

means (Paragraph

means.

(3) A court shall

Witnesses by

2 of Section 714).

(Paragraph 2 of

confirm the identity

Video-

Section 703).

of persons involved

conferencing



and ensure the

with Direct

performance of

Asking of

taking of evidence in

Questions

Latvia. (Paragraphs

2 and 3 of Section

692);

If there is no access

to the technical

means referred to

above in the

requesting or in the

requested court,

such means may be

82

Part II – Synoptical Presentation



made available by

the courts by

mutual agreement

(Point 4 of Article

10 of Council

Regulation No

1206/2001)

1. See Point 1 in

1. See Point 1 in



1. See Point 1 in the

the table section

the table section

table section above;

above;

above;

2. Article 12 of

2. Terms of CPL

2. In the cases

Council Regulation

does not

provided for in this

No 1206/2001

determine direct

Law a court may,

determine the

hearing of

upon its own

opportunity of direct

witnesses by

initiative or upon a

hearing of witnesses

requesting court

substantiated

by requesting court

in requested

request of a

in requested country.

country.

participant in the



matter, request in a

request of Latvia

Direct Hearing

for taking of

of Witnesses by

evidence:

Requesting

1) to permit the

Court in

participants in the

Requested

matter or their

Country

representatives to



participate in

taking of evidence

in accordance with

Article 7 of Hague

Convention 1970;

2) to permit court

representatives to

participate in

taking of evidence

in accordance with

Article 8 of Hague

Convention 1970

(Paragraph 699 of

CPL).



Legal

Regulation

Multilateral

Regulation

Means

National Law

Bilateral Treaties

Treaties

1206/2001

of Taking

Evidence

1. A court shall

1. A court shall take

Note: See the

1. A court shall take

take evidence in

evidence in Latvia

information

evidence in Latvia

Hearing of

Latvia on the basis

on the basis of a

provided in

on the basis of a

Witnesses by

of a request of a

request of a foreign

Section “Bilateral

request of a foreign

Mutual Legal

foreign country for

country for taking

treaties”

competent authority

Assistance

taking of evidence

of evidence and a

regarding taking of

(Legal Aid)

and a decision of

decision of the

evidence in Latvia

the Ministry of

Ministry of Justice

(hereinafter –

Justice on

on permissibility of

request of a foreign

Part II – Synoptical Presentation

83



permissibility of the

the request of the

country for taking of

request of the

foreign country for

evidence) and a

foreign country for

taking of

decision of the

taking of evidence

evidence.(Paragraph

competent authority

(Paragraph 1 of

1 of Section 695);

of Latvia on

Section 706);

2. With regard to

permissibility of the

2. Legal

bilateral

request of the

assistance shall

international

foreign country for

take place only by

treaties on legal

taking of evidence

mediation of the

assistance, the

(Paragraph 1 of

Ministry of Justice

legal cooperation

Section 684);

or other

shall only take

2. Court decides on

competent

place by mediation

taking of evidence in

institutions;

of the Ministry of

a foreign country

3. The content of Justice or other

and submit requests

the request for

competent

of Latvia for taking

taking of evidence

institutions;

of evidence directly

is set forth by

3. A request of a

to the foreign

Section 708 of

foreign country for

country or Ministry

CPL, i.e. there are

taking of evidence

of Justice

no blank forms

and documents

(Paragraph 2 of

(International

appended thereto

Section 685);

agreements on

shall be accepted

3. In accordance

legal assistance as

prepared in writing.

with Articles 4 and 5

well as the Council

A request of a

of Council

Regulation No

foreign country for

Regulation No

1206/2001 contain

taking of evidence

1206/2001 a request

such forms);

and documents

of a foreign country

4. (2)A request of

appended thereto

for taking of

a foreign country

may be accepted by

evidence and

for taking of

other means of

documents appended

evidence shall be

communication if

thereto, as well as

accepted prepared

they are submitted

notifications shall be

in or with a

also in writing

accepted if such

translation

(Paragraph 4 of

documents have

appended in the

Section 698);

been prepared in the

official language,

4. The Ministry of

official language or

Russian or English;

Justice shall decide

in English

(3) If it is not

on a request of a

(Paragraph 1 of

possible to ensure

foreign country for

Section 686);

translation in any of

taking of evidence

4. A request of a

the languages

within seven days

foreign country for

referred to in

from the day of

taking of evidence

Paragraph two of

receipt thereof

shall be decided by a

this Section, the

(Paragraph 1 of

district (city) court

competent

Section 700);

in the territory of

authorities of Latvia

4. With regard to

which the source of

and the foreign

application of the

evidence to be taken

country may

Council

is located, or by the

mutually agree on

Regulation No

Ministry of Justice

another language in

1206/2001 where

in the cases provided

which the request

the foreign request

for in Article 3(3)

of the foreign

for taking of

and Article 17 of

country for taking

evidence may be

Council Regulation

of evidence and the

decided both by

No 1206/2001

documents

the district (city)

within seven days

appended thereto

court and the

from the day of

should be drawn up

Ministry of

receipt thereof

84

Part II – Synoptical Presentation



or in which the

Justice, in case of

(Paragraph 1 of

translation should

international

Section 689);

be appended thereto

treaties such right

5. It is admissible

(Paragraph 2 of

is only to the

to execute the

Section 709);

court;

foreign request of

5. The Ministry of 5. (1) In executing a

the taking of

Justice shall decide

request of a foreign

evidence both

on a request of a

country for taking

pursuant to the

foreign country for

of evidence, a court

CPL and the

taking of evidence

shall ascertain

foreign procedural

within 10 days from

whether the

order;

the day of receipt

obstacles indicated

6. (1) In executing a

thereof (Paragraph

in Section 106 of

request of a foreign

1 of Section 711);

this Law exist, as

country for taking of

6. A request of a

well as explain the

evidence a court

foreign country for

witnesses their right

shall ascertain

taking of evidence

of refusal to testify

whether the

shall be enforced by

in the cases

obstacles indicated

a district (city)

provided for in

in Section 106 of

court in the territory

Section 107 of this

this Law exist, as

of which the source

Law.

well as explain the

of evidence to be

(2) In executing a

witnesses their right

taken is located;

request of a foreign

of refusal to testify

7. It is

country for taking

in the cases provided

admissible to

of evidence a court

for in Section 107 of

execute the foreign

shall, in accordance

this Law;

request of the

with Hague

(2) In executing a

taking of evidence

Convention 1970,

request of a foreign

both pursuant to

explain the

country for taking of

the CPL and the

witnesses their right

evidence a court

foreign procedural

of refusal to testify

shall, in accordance

order;

also in accordance

with Article 14 of

8. (1) In

with the law of the

Council Regulation

executing a request

country submitting

No 1206/2001,

of a foreign country

the request (Section

explain the witnesses

for taking of

703 of CPL).

their right of refusal

evidence a court

6. It is admissible

to testify also in

shall ascertain

to execute the

accordance with the

whether the

foreign request of

law of the country

obstacles indicated

the taking of

submitting the

in Section 106 of

evidence both

request (Section

this Law exist, as

pursuant to the

693).

well as explain the

CPL and the



witnesses their right

foreign procedural

of refusal to testify

order;

in the cases



provided for in

Section 107 of this

Law;

(2) In executing a

request of a foreign

country for taking

of evidence, the

witnesses may

refuse to testify also

in accordance with

the law of the

country submitting

Part II – Synoptical Presentation

85



the request, if such

right is provided for

in the request of the

foreign country for

taking of evidence

or it has been

otherwise

confirmed by the

competent authority

of the foreign

country (Section

715).

1. See Points 1-8 in

1. See Points 1-5 in



1. See Points 1-7 in

the table section

the table section

the table section

above;

above;

above;

2. (1) If

2. (1) If

2. (1) If enforcement

enforcement of a

enforcement of a

of a request of a

request of a foreign

request of a foreign

foreign country for

country for taking

country for taking

taking of evidence is

of evidence is

of evidence is

permitted using

permitted using

permitted using

technical means,

technical means,

technical means,

such request of a

such request of the

such request of the

foreign country for

foreign country for

foreign country for

taking of evidence

taking of evidence

taking of evidence

shall be enforced by

shall be enforced by

shall be enforced by

the district (city)

Hearing of

the district (city)

the district (city)

court for which the

Witnesses by

court for which the

court for which the

necessary technical

Video-

necessary technical

necessary technical

means for taking of

means for taking of

means for taking of

evidence are

conferencing

evidence are

evidence are

available;

with Direct

available;

available;

(2) If necessary, an

Asking of

(2) If necessary, an

(2) If necessary, an

interpreter shall

Questions

interpreter shall

interpreter shall

participate in taking

participate in taking

participate in taking

of evidence in Latvia

of evidence in

of evidence in

or in a foreign

Latvia or in a

Latvia or in a

country using

foreign country,

foreign country,

technical means;

using technical

using technical

(3) A court shall

means;

means;

confirm the identity

(3) A court shall

(3) A court shall

of persons involved

confirm the identity

confirm the identity

and ensure the

of the persons

of the persons

performance of

involved and ensure

involved and ensure

taking of evidence in

the performance of

the performance of

Latvia (Section

taking of evidence

taking of evidence

692).

in Latvia (Section

in Latvia (Section



714).

703).

1. See Point 1 in the

1.See Point 1 in the



1.See Point 1 in the

Direct

table section above;

table section above;

table section above;

Hearing of

2. (1) If

2. (1) If

2. A court that

Witnesses by

enforcement of a

enforcement of a

enforces a request of

Requesting

request of a foreign

request of a foreign

a foreign country for

Court in

country for taking

country for taking

taking of evidence in

Requested

of evidence is

of evidence is

accordance with

permitted in the

permitted in the

Article 11 or 12 of

Country

presence or with the

presence or with the

Council Regulation

86

Part II – Synoptical Presentation



participation of the

participation of the

No 1206/2001 shall

parties or their

representatives of

notify the

representatives, or

the competent court

representatives of

representatives of

or parties, or their

the competent court

the competent court

representatives in

of the foreign

in the taking of

the taking of

country or the

evidence, a court

evidence in

parties, or their

that enforces the

accordance with

representatives

request of the

Article 7 or 8 of

regarding the time

foreign country for

Hague Convention

and place of taking

taking of evidence

1970, the court that

the evidence, as well

shall notify the

enforces the request

as regarding

competent authority

of the foreign

conditions for

of the foreign

country for taking

participation;

country or directly

of evidence shall

(2) A court shall

the representatives

notify the

ascertain whether

of the competent

competent authority

representatives of

court of the foreign

of the foreign

the competent court

country or the

country or directly

of the foreign

parties, or their

the representatives

country, the parties

representatives

of the competent

or their

regarding the time

court of the foreign

representatives need

and place of taking

country or the

an interpreter;

of evidence, as well

parties, or their

(3) If the persons

as regarding

representatives

referred to in

conditions for

regarding the time

Paragraph one of

participation;

and place of taking

this Section fail to

(2) A court shall

of evidence, as well

understand the

ascertain whether

as regarding

official language and

representatives of

conditions for

if there are no

the competent court

participation;

important practical

of a foreign

(2) A court shall

difficulties, an

country, the parties

ascertain whether

interpreter shall

or their

representatives of

participate in taking

representatives

the competent court

of evidence upon the

need an interpreter;

of the foreign

request of

(3) If the persons

country, the parties

representatives of

referred to in

or their

the competent court

Paragraph one of

representatives need

of the foreign

this Section fail to

an interpreter;

country or the

understand the

(3) If the persons

parties, or their

official language

referred to in

representatives

and if there are no

Paragraph one of

(Section 691).

substantial practical

this Section fail to

2. Article 12 of

difficulties, an

understand the

Council Regulation

interpreter shall

official language

No 1206/2001

participate in taking

and if there are no

determine the

of evidence upon

substantial practical

opportunity of direct

the request of

difficulties, an

hearing of witnesses

representatives of

interpreter shall

by requesting court

the competent court

participate in taking

in requested country.

of the foreign

of evidence upon

country or the

the request of

parties, or their

representatives of

representatives

the competent court

(Section 713).

of the foreign



country or the

parties, or their

Part II – Synoptical Presentation

87



representatives

(Section 702).



88





Evidence in Civil Law – Latvia

J. Rozenfelds, D. Ose, M. Osis





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enforcement proceedings and paying remuneration of bailiff, if a decision of the

authority responsible regarding compulsory sanctions determined by international

94

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