Taking of evidence within the European Union Council regulation no 1206/2001 on cooperation between the courts of Member States in the taking of evidence in civil and commercial matters

Historical background A court of Member state may be in need to take some evidence in another Member state – there is necessity to established common rules for this evidence taking. Some regulation existed in Hague conventions (Hague convention on civil procedure from 1954, Hague convention of the taking of evidence abroad in civil and commercial matters). European Council in Tampere and activities of Germany led to the commencement of legislative work on new regulation with the aim to improve the mechanism of evidence taking established by Hague convention.

The evidence taking regulation In 2001 was created a new regulation – no 1206/20001 on cooperation between the courts of Member states in the taking of evidence in civil and commercial matters – applicable in general from 1st January Regulation brings direct provisions on evidence taking – „real European civil procedure“. In the annexes – practical forms – simple and effective way of realization of evidence taking.

Scope of application Three conditions must be fulfilled: 1. Evidence for use in judicial proceedings 2. The evidence taking must be concerned with civil and commercial matters 3. Qualified international element

The evidence taking Regulation General information The Regulation regulates the role of the following subjects: 1. Requesting court 2. Requested court 3. Central body

The evidence taking Regulation General information Language used within the evidence taking procedure – it´s necessary to distinguish language of the forms and language of other documents: 1. Language of the forms (language of the legal aid) 2. Language of other documents

The evidence taking Regulation The ways of evidence taking The Regulation brings two possibilities for one Member state how to execute evidence taking in another Member state: 1. Evidence taking using the international legal aid (in the Regulation „direct transmission between the courts“) 2. Direct taking of evidence by the requesting court.

Evidence taking using the international legal aid The principle is that one court asks second court in another Member state directly to take evidence which is needed in judicial proceedings (commenced or contemplated). The requesting court submits to the requested court request on the form A of the Regulation. The request shall be submitted by the swiftest ways possible, which are indicated by the Member state as acceptable (in the Czech Republic – service by post, or fax).

Evidence taking using the international legal aid It is neccesary to take into account: Every Member state has its own national regulation of taking of evidence The national regulation sets down the individual ways of evidence (e.g. Declaration on word of honour is not known by Czech law) Iťs necessary to keep the rights of the relevant person to be heard regulated by the appropriate law – that´s why ----->

Evidence taking using the international legal aid The form A shall contain the following details: a) the requesting and, where appropriate, the requested court; b) the names and addresses of the parties to the proceedings and their representatives, if any; c) the nature and subject matter of the case and a brief statement of the facts; d) a description of the taking of evidence to be performed; e) where the request is for the examination of a person, - the name(s) and address(es) of the person(s) to be examined, - the questions to be put to the person(s) to be examined or a statement of the facts about which he (or she) is (they are) to be examined, - where appropriate, a reference to a right to refuse to testify under the law of the Member state of the requesting court, - any requirement that the examination is to be carried out under oath or affirmation in lieu thereof, and any special form to be used, - where appropriate, any other information that the requesting court deems necessary f) where the request is for any other form of taking of evidence, the documents or other objects to be inspected; g) where appropriate, any request pursuant to Article 10(3) and (4), and Articles 11 and 12 and any information necessary for the application thereof.

Evidence taking using the international legal aid The requested court sends to the requesting court receipt of request within served days (form B). If the request cannot be executed – the requested court informs the requesting court within 30 days (form C) and indicates the information missing or if it cannot be executed because deposit is necessary the requested court informs the requesting court about that within the same period.

Evidence taking using the international legal aid The execution of the request – two basic principles: a) The request must be executed within 90 days from the receipt of the request, b) The request is executed in accordance with the national law of the requested court

Evidence taking using the international legal aid The requesting court may ask the requested court to use a communication technology at the performance of taking evidence – in particular videoconference and teleconference. The requested court may refuse:  If it is incompatible with its national law, or  By reason of major practical difficulties.

Evidence taking using the international legal aid The refusal to execute the request: The request may be refused only if: a) the request does not fall within the scope of this regulation, b) the execution does not under the law of the Member state requested fall within the functions of judiciary, c) the requesting court does not comply the request properly, d) a deposit required was not made in the period of 60 days after the requested court asked for it. The request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence: a) Under the law of Member state of requested court, b) Under the law of Member state of requesting court, if such right was specified in the request or confirmed by the requesting court.

Evidence taking using the international legal aid Article 11 of the Regulation regulates the performance of evidence taking with the presence and participation of the parties: If it is provided by the law of requesting court, the parties and the representatives have the right to be present at the performance of the evidence taking at the requested court, The requested court informs the parties about the time and place of evidence taking and may determine conditions under which they may participate.

Evidence taking using the international legal aid Article 12 regulates then the performance with the presence and participation of representatives of the requesting court: The representatives of the requesting court have the right to be present in the performance of the taking of evidence by the request court if it is compatible with the law of the Member state of the requested court. „Representative" – member of judicial personnel. An expert may be designated as well. The requested court informs the representatives about the time and place of evidence taking and may determine conditions under which they may participate.

Evidence taking using the international legal aid During the performance of the request the requested court may use necessary coercive measures. The request shall be executed within 90 days – if it is not possible the requested court informs the requesting court and designates grounds for the delay. After the execution of the request the requested court sends to the requesting court documents establishing the execution of the request and returns all the documents received from the requesting court.

Evidence taking using the international legal aid Costs of evidence taking: The execution of the request shall not give rise to a claim for any reimbursement of the taxes and costs, with the exemption of: a) Fees paid to experts and interpreters, b) The costs of usage of communication technologies. The duty for the parties to bear the cost is governed by the national law of the Member state of the requesting court. Where opinion of expert is required – deposit or advance towards the requested costs may be asked by the requested court.

Direct taking of evidence If a court request to take the evidence directly – it shall submit a request of the form to the central body of the relevant Member state. The Regulation sets down these conditions of direct evidence taking: a) It can be performed on a voluntarily basis without the need of coercive measures, b) When it implies that a person shall be heard the person must be informed that the performance is on voluntarily basis. c) It shall be performed by a member of judicial personnel or other person designated, e.g. Expert, in accordance with the national law of the Requesting Member state.

Direct taking of evidence The central body informs the requesting court within 30 days whether the request was accepted or refused: The request may be refused only, if: a) The request does not fall within the scope of the Regulation b) The request does not contain all the necessary information c) The direct taking of evidence is contrary to fundamental principles of the Member state requested.