EXAMINATION OF WITNESS BY THE REQUESTED COURT AS A RULE DOES NOT LEAD TO RELIABLE FACTUAL FINDINGS
Authors: JUDr. Lukáš Duffek and Mgr. Lucie Kačerová
In practice, it is not at all rare that certain acts are performed by a requested court instead of the relevant trial court. Usually this concerns the examination of witnesses or expert witnesses in cases when it is more cost-effective to perform this act, for instance, in the place of residence or domicile of those persons, which leads to a reduction of witness and expert’s fees, or when the person being examined is unable, or it is immensely difficult for him/her, to appear before the trial court for health reasons. However, in practice the courts make use this option even in cases where it is inappropriate.
The examination of witness by the requested court runs counter to the principle of directness that governs civil trials and which is reflected, for instance, in the rule that it is the court that presides over the given case that should conduct the investigation. The reason for such a rule is simple. While hearing the testimony of a witness, the court evaluates the credibility of the testimony not only by considering what relationship the witness has towards the participants in the proceedings and the subject matter of the case, but also by observing the witness’s intellectual and mental capabilities, how the witness retraces the facts that he or she describes, and how the witness behaves during the examination (persuasiveness, certainty, the smoothness of responses, willingness to answer the questions, etc.). The court thus obtains an “overall impression” of the witness, which cannot be fully captured in a written record, which constitutes the main difficulty of requested examinations.
Therefore, the Supreme Court points out in its decisions that “evidence of this type, collected by the requested judge, which presents the trial court with a mere written account of a person’s testimony of facts important for the legal assessment of the whole case, as a rule cannot be considered suitable and sufficient, due to its questionable ability to prove to the greatest possible extent the contentious facts that are decisive for the result of the proceedings.” (See for example the Supreme Court’s decision from January 31, 2019, Ref. No. 21 Cdo 4132/2018).
Despite the fact that the given decision of the Supreme Court cannot be faulted, it is often neglected in practice, and considering how frequently this option is used, it could provide interesting opportunities for appeals.