Taking of Evidence
Taking of evidence through international legal assistance is required when a witness to be heard or a document to be used as evidence in court proceedings is located abroad.
As a rule, courts have three options if they wish to hear a witness:
- The witness is summoned to appear in court proceedings in Finland
- The witness is heard in a court in that country where he or she resides
- The witness is heard by using videoconference or telephone
A request for taking evidence must be drawn up and transmitted in accordance with the EU law or an international treaty depending on the country where the witness or piece of evidence is located.
The Ministry of Justice functions as the designated Central Authority for the purposes of several international treaties. In cases where no agreement on direct transmission has been made between the countries in question, the Central Authority is responsible for transmitting the requests for taking evidence. Furthermore, the Central Authority provides guidance, training and advice on the application of the agreements.
Relevant legislation and treaties binding on Finland
Between the EU Member States (with the exception of Denmark), the EU Evidence Regulation (Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters) is applied. Under the Evidence Regulation, a court sends the requests for taking evidence directly to the competent court in the receiving EU country. The EU Evidence Regulation contains detailed provisions for example on the requirements concerning languages and translations as well as on the taking of evidence by using videoconference or telephone.
The text of the Regulation, the transmitting and receiving authorities, standard forms, and other practical information are available on the European e-Justice Portal .
Between Finland, Iceland, Norway and Denmark, the Agreement between Finland, Denmark, Iceland, Norway and Sweden on Mutual Legal Assistance in Service of Documents and Production of Evidence (Treaty Series 26/1975) is applied. The Nordic Agreement is based on the principle of direct transmission between the competent authorities. In Finland, courts send the requests for taking evidence directly to the receiving court in the other Nordic country. In relations with Sweden, however, the EU Evidence Regulation is primarily applicable instead (for more information on the Regulation, see above). In relations with all of the Nordic countries, the Act on the Obligation to Appear before the Court of Another Nordic Country in Certain Cases (349/1975) must also be observed.
Finland has also acceded to the Hague Evidence Convention (Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Treaty Series 37/1976). The Convention is applied, for instance, in relation to the United States of America and Turkey. Under this Convention, Finnish courts transmit the requests for taking evidence abroad through the Central Authority.
The full text of the Convention, explanatory reports, a list of the Contracting States and the reservations made by them, the mandatory form, and other practical information are available on the website of the Hague Conference .
With Russia, there are two alternative agreements that may be applied: the above mentioned Hague Evidence Convention and the Agreement between the Republic of Finland and the Union of Soviet Socialist Republics [Russia] on legal protection and legal assistance in civil, family and criminal matters (Treaty Series 48/1980).
Courts transmit the requests for taking evidence to those countries with which Finland has no agreement through the Ministry for Foreign Affairs.
Related national legislation:
The national provisions on requesting and providing legal assistance in taking of evidence are included in the Act on international legal assistance and recognition and enforcement of judgments in civil and commercial matters (426/2015). This Act is, however, secondary in nature in relation to the EU law and the international agreements.
In addition to the Act mentioned above, the provisions on evidence laid down in the Code of Judicial Procedure (4/1734) must be observed.
The national legislation and the international treaties are available in Finlex Data Bank .
Legal Adviser Maija Leppä