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If the residence of the defendant is not in Estonia, the action is filed with the court of the residence of a common child of the parties who is a minor and, in the absence of a common child who is a minor, with the court of the residence of the plaintiff.
If the residence of the child is not in Estonia, the action is filed with the court of the residence of the defendant. If the residence of the defendant is not in Estonia, the action is filed with the court of the residence of the plaintiff. A maintenance matter is a civil matter for the adjudication of an action the object of which is a claim for: Among both international and Estonian courts, county courts have jurisdiction in the cases where the defendant responds to the action without contesting jurisdiction and also in the cases where the defendant does not respond to the action but participates in a court session without contesting jurisdiction.
A court of first instance may refer a matter to another court of first instance by a ruling if the parties submit a common petition to such effect before the first court session or, in the case of written proceedings, before the expiry of the term for submission of positions.
If a person has gone missing in connection with a shipwreck registered in Estonia, the petition is filed with the court of the home port of the ship. If the residence or seat of the petitioner is not in Estonia, the petition is filed with Harju County Court. An Estonian court is competent to adjudicate a guardianship matter if: If the guardianship proceeding in such case is already conducted by a court, the guardianship matter is adjudicated by such court.
Such matter can also be adjudicated, with good reason, by the court of the residence of the person under guardianship or the court of the location of the property of such person. In other cases such matters are adjudicated by the court within the territorial jurisdiction of which the closed institution is located. The matter can also be adjudicated by the court that applied provisional legal protection. If the adoptive child has no residence in the Republic of Estonia, the petition is filed with Harju County Court.
If the minor has no residence in the Republic of Estonia, the petition is filed with Harju County Court. If a person seeks establishment of his or her filiation to a person who is dead or a person contests an entry concerning a parent in the birth registration of a child or in the population register after the death of the person entered in the birth registration or in the population register as a parent, a petition to such effect is filed with the court of the last residence of the person the establishment of filiation to whom is sought or concerning whom the entry in the birth registration or in the population register is contested.
If the last known residence of the person was not in Estonia or if the residence is unknown, the petition is filed with Harju County Court. If the residence of that spouse is not in Estonia or the residence cannot be established, the matter is adjudicated by the court of the residence of the petitioner.
If a succession opens in a foreign state and the estate is located in Estonia, estate management measures can be applied by the court of the location of the estate. A matter on petition related to apartment ownership or common ownership is adjudicated by the court of the location of the immovable.
Matters of access to a public road and tolerating utility works are adjudicated by the court of the immovable from which access to a public road is sought or on which the utility works is located. A settlement agreement reached as a result of a conciliation proceeding specified in subsection 14 1 of the Conciliation Act is declared enforceable by the court within the territorial jurisdiction of which the conciliation proceeding was conducted.
The calculation of the value of a civil matter is based on the time of filing of the action or other petition. A claim in a foreign currency is translated into euros for the purpose of determining the value of an action as at the time of filing of the action on the basis of the daily exchange rate of the European Central Bank. The value of an establishment action is determined by the value of the benefit to which the plaintiff can be presumed to be entitled in the case of satisfaction of the action.
If the value of the benefit cannot be determined, the claim of the action is deemed to be non-proprietary. This applies regardless of whether the matter is adjudicated on the basis of a contract or a non-contractual legal relationship unless otherwise provided by law.
If the value of the pledged object is lower than the value of the claim, the value of the thing is taken as the basis. The value of an action in a dispute related to or arising from a real servitude is determined based on the value of the servitude for the dominant immovable.
If the amount by which the value of the servient immovable is reduced by the real servitude is higher than such value, the amount by which the value of the servient immovable is reduced by the real servitude is deemed to be the value of the action. The value of an action in the case of a dispute relating to the validity or duration of a lease contract, commercial lease contract or other similar contract for use is the sum total of the user fees payable for the time under dispute which shall however not be longer than one year.
In the case of a dispute relating to delivery of the possession of an immovable, construction works or part thereof due to the expiry of a contract, the value of the action is the sum total of the user fees payable for one year. The court shall not determine the value of an action with such claim to be more than euros.
If the claims are alternative, the value of the action is determined by the higher claim. The plaintiff or other petitioner specifies the value of the action in the statement of claim, other petition or appeal unless such value clearly arises from the object of the petition or an earlier petition or is exactly specified by law. The court may determine the value of a civil matter also if the court finds the value of the action specified by the plaintiff or other petitioner to be incorrect. The court may decide that such costs must be borne, in part or in full, by the party who caused the need for evaluation by failing to specify the value, presenting an incorrect value or contesting the value without basis.
The court may also change the value by the court decision whereby the matter is adjudicated. If the claims of action preclude each other, the action with the higher value is taken as the basis. This does not preclude payment of a state fee on the basis of a court decision. A security of 50 euros is paid for matters on petition, non-proprietary claims and appeals against rulings.
Costs essential to proceedings are: Extra-judicial costs are: The Republic of Estonia as a participant in a proceeding is released from payment of the state fee and the security. An action is not served on the defendant and other procedural acts arising from an act for which a state fee is charged are not performed before payment of the state fee.
A term for payment of the state fee is set for a petitioner and if the petitioner fails to pay the state fee by the due date, the petition is not accepted unless otherwise prescribed by law.
If the plaintiff fails to pay the state fee by the due date set by the court, the court refuses to hear the action in the part of the claim.
If the plaintiff fails to pay a supplementary state fee, the action is deemed to be filed for the initial value. In the case of filing a petition for changing an expedited procedure in matters of payment order into an action, the matter is not accepted for an action before the state fee for the action has been paid.
If a petition is filed by both parties or if a witness or expert is summoned or an inspection is conducted at the initiative of the court, the costs are paid by the parties in equal amounts. The court accepts cash to the same extent as it accepts state fees. The petitioner is set a term for payment of the security and if the security is not paid within such term, the petition is not accepted.
In the case of refusal to accept or satisfy an appeal or petition for review, the security is transferred into the public revenues. The security is refunded if an appeal or petition for review is not accepted because it does not comply with the format requirements or because it contains other omissions and the omissions are not corrected by the due date set by the court, likewise if an appeal, petition for review, action or petition in a proceeding on petition is refused to be heard or the proceeding in the matter is terminated.
If a petition is not satisfied, the security is transferred into the public revenues. The security is also refunded if a petition is not accepted, likewise if a petition or action is refused to be heard or the proceeding in the matter is terminated. The court may refund the security in the case specified above if the defendant could not respond to the action or appear in the court session due to an accident or illness, of which the defendant could not inform the court.
The costs essential to the proceeding are not deducted from the refundable amount. Upon filing a petition or appeal on which security is payable, it shall be indicated in the petition or appeal to whom and to which bank account the security is to be refunded.
In the cases specified in clauses 1 2 and 3 of this section, the costs essential to the proceeding are deducted from the refunded amount. The state fee is refunded to the participant in the proceeding who was required to pay it or upon the request thereof to another person.
The amount is refunded pursuant to the procedure provided in subsections 4 — 6 of this section. The extent of and procedure for compensation for the costs of a staff interpreter or translator shall be established by the Government of the Republic. The costs of making an expert assessment by a state forensic institution are compensated to the extent and pursuant to the procedure provided in the Forensic Examination Act.
Compensation for a witness is compensation for any unreceived salaries or wages or other unreceived permanent income. Compensation for a witness is also paid if a question about evidence is responded to in written form.
Hourly fee payable to experts, interpreters and translators shall not be lower than the minimum permitted hourly wages payable to an employed person and shall not exceed such rate more than 50 times.
The Government of the Republic may also establish a fixed fee for certain types of expert assessment, interpretation or translation by a regulation.
A witness, expert, interpreter or translator residing in a foreign state may be paid compensation or fees according to a higher rate than the rates established by the Government of the Republic if such compensation or fee is usual in his or her state of residence and the person's participation in the proceeding is absolutely necessary.
The Government of the Republic may establish the specific procedure for payment of compensation or fees at a higher rate by a regulation. Other necessary costs arising from a court proceeding, above all the costs of accommodation and meals are reimbursed to witnesses, experts, interpreters and translators to the extent established by the Government of the Republic.
An expert may also request advance payment if preparation of an expert opinion requires high expenses which the expert cannot be reasonably expected to be cover. The court sends a transcript of the ruling to the agency designated by a directive of the minister responsible for the area. If, according to the recipient, the amounts payable to a natural person constitute business income of the person or the payment is made to the employer of the person entitled to receive payment, the agency executing the ruling transfers the entire amount prescribed by the ruling unless otherwise provided by tax legislation.
The court informs a witness of such term and the legal consequences of expiry of the term. Upon setting the term, the court also informs an expert, interpreter or translator of the consequences of expiry of the term. An expert, interpreter or translator may request restoration of the term if he or she had good reason for failing to respect the term.
A petition for restoration of a term may be filed within 14 days after removal of the obstacle and substantiation of the conditions of restoration of the term.
No fees or security is payable on the petition for restoration of the term. An appeal may be filed against a ruling of a county court or circuit court if the object of the appeal exceeds the amount of 64 euros. The costs incurred by a person in connection with an expert assessment are reimbursed on the conditions and pursuant to the procedure for reimbursement of the costs of persons not participating in proceedings incurred in connection with expert assessment provided in the Forensic Examination Act.
The court also sends a transcript of the ruling to the agency designated by a directive of the minister responsible for the area.
The court informs a person entitled to be reimbursed of such term and the legal consequences of expiry of the term. A party is reimbursed for any extra-judicial costs, including compensation for unreceived wages or other unreceived permanent income on equal grounds and to the same extent as witnesses are compensated for their costs. If an action for establishment of filiation is satisfied, the court may decide that the costs be covered, in part or in full, by the party who incurred the costs, in the cases where ordering payment of the opposing party's costs from the defendant would be extremely unfair or unreasonable.
If persons are participating in a proceeding to a different extent, the court may base the division of expenses on the extent of their participation.
The above also applies if pursuant to subsection 3 of this Code, a procedural act of a co-plaintiff or co-defendant is applicable to other co-plaintiffs or co-defendants. This does not preclude or restrict the application of the provisions of subsection 2 of this section. Upon substitution of a party in the case of transfer of the disputed object or assignment of claim, the substituted party and the substituting party are jointly and severally liable for the procedural expenses of the opposing party if the court decides in favour of the opposing party.
The court determines a different division of costs if dividing the costs in the manner indicated above would clearly be unfair. This does not preclude or restrict the right of a third party to claim compensation for the expenses on the grounds arising from private law. A participant in a proceeding may also be ordered to cover, regardless of the outcome of the proceeding, the expenses caused by service of procedural documents if the delay in service was caused by incorrect information entered in the population register, commercial register or non-profit associations and foundations register concerning the person.
If several persons participate in a proceeding on petition, the court may decide that all or a part of the procedural expenses must be covered by a certain participant in the proceeding if this is fair considering the circumstances, including if the participant in the proceeding has submitted an unfounded petition, statement or evidence. The court may decide that all or a part of the expenses related to a proceeding for appointment of a guardian for a person or annulment thereof or a proceeding for application of measures related to guardianship, likewise of the expenses related to a proceeding in a family matter on petition and imposition of a restraining order or another similar measure for protection of personality rights must be covered by the state.
If this is fair considering the circumstances, the court may decide that all or a part of the expenses must be paid by the petitioner. If this is fair considering the circumstances, the court may decide that all or a part of the expenses must be paid by the petitioner or another person.
If initiation of a proceeding is possible only based on a petition and the petition is not satisfied, the court decides that the procedural expenses must be covered by the petitioner, unless otherwise provided by law.
Compensation for extra-judicial costs can be requested only if the court decides that these must be covered by a participant in the proceeding. Covering of extra-judicial costs by the state may be decided only if procedural assistance was granted to a person for covering extra-judicial costs.
The above also applies in the case specified in subsection 3 of this section. The provisions concerning procedural expenses in actions apply otherwise. If hearing of a matter of a payment order is continued in actions, the expenses of the expedited procedure in the matter of payment order are included in the procedural expenses for actions.
The court which is the next to adjudicate the matter sets out in its decision the division of all the procedural expenses which have already been covered. If necessary, the specifications of covering procedural expenses in court instances, including in pre-trial proceedings, are set out.
If a higher court annuls a decision of a lower court and refers the matter for a new hearing, including if the Supreme Court satisfies a petition for review, the lower court is granted the right to decide on the division of procedural expenses. If necessary, the court determines a proportional division of the procedural expenses between the participants in the proceeding. If several participants in a proceeding, primarily co-plaintiffs or co-defendants, are ordered to cover procedural expenses jointly, the decision shall set out whether they are liable as joint obligors or solidary obligors.
In such case the division of procedural expenses is prescribed in the final judgement. The court determines the amount of procedural expenses in money even if the participants in the proceeding do not submit a request for determining procedural expenses proceeding from the list of procedural expenses or the materials of the civil matter. When a higher court adjudicates an appeal against a county court's judgment or ruling which terminates the proceeding whereby the county court did not determine procedural expenses, the higher court does not determine the amount of procedural expenses in money.
The costs of advisers are not subject to compensation. The court sets a term for submission of a list of procedural expenses concerning the costs related to participation in the court session where the hearing of the matter was terminated. The term specified in the previous sentence shall not exceed three working days after the court session. Documents in proof of the procedural expenses need not be submitted without a demand of the court.
The term may not exceed seven days after service of the list of procedural expenses and proof thereof. Supplementing may be requested within ten days after the service of the court judgment or ruling on determination of procedural expenses. Subsection 4 1 of this Act correspondingly applies to the supplementing of the ruling with the omitted part. The amount of procedural expenses subject to compensation can be contested by filing an appeal against the court decision whereby the amount of procedural expenses in money was determined.
A ruling shall not be made if more than two years have passed from entry into force of the court decision made on the matter. The provisions of the General Part of the Civil Code Act concerning expiry of claims apply to the expiry of a claim. The court also set this out in the decision whereby payment of procedural expenses is ordered. At the request of a person hereinafter recipient of procedural assistance , the court may order that, as procedural assistance, a recipient of procedural assistance: The importance of the matter to the person requesting procedural assistance is also taken into consideration upon evaluating the success of the person's participation in the proceeding.
Procedural assistance is not granted for the translation of procedural documents other than a court decision if a person is represented in the proceeding by a representative. Other participants in the proceeding who are natural persons are granted procedural assistance only if this arises from an international agreement. The assets specified in clause 2 2 of this section also include joint property to the extent that it may be presumed that the joint owners might reasonably use it to cover procedural expenses.
Other foreign legal persons are granted procedural assistance only on the basis of an international agreement. Procedural assistance designated to cover the remuneration and expenses of a trustee in bankruptcy which are not ordered to be paid into the public revenues shall not exceed euros, including any taxes prescribed by law, except for value added tax.
An additional prerequisite for the grant of state legal aid is that the trustee in bankruptcy cannot perform the requested procedural act himself or herself or he or she cannot be presumed to do it considering his or her qualifications and tasks. The court shall not demand legalisation of the application or official certification thereof in another manner.
However, upon accepting an appeal, the court verifies whether there is sufficient reason to presume that the intended participation in the proceeding will be successful and that the participation in the proceeding is clearly not unreasonable and the court has the right to verify in every court instance whether the economic prerequisites for the grant of procedural assistance have been complied with.
The success or reasonableness of participation in the proceeding is not verified if the court decision has already been appealed by another participant in the proceeding and the appeal has been accepted. Where necessary, the court has the right, among other, to request information on the financial situation or solvency of the recipient of procedural assistance or of his or her family members from the Tax and Customs Board, credit institutions and other persons or agencies.
The court shall verify the existence of all the prerequisites for the grant of procedural assistance if procedural assistance is requested later than within one year after entry into force of the decision made in the proceeding. If the applicant is unable to submit the statement with good reason, provision of procedural assistance may be decided without the statement.
The minister responsible for the area may also establish requirements for the documents which provide the grounds for the application to be submitted by an applicant. An application may also be submitted in English if procedural assistance is requested by a natural person who has residence in another Member State of the European Union, is a citizen of another Member State of the European Union, or is a legal person whose seat is in another Member State of the European Union.
Housing or a necessary vehicle belonging to an applicant for procedural assistance which is used daily by him or her and family members who live together with the applicant are not taken into consideration if the number and value of the housing and vehicles equitably correlate to the size, driving needs and income of the family.
An inquiry must be responded to within the term set by the court. A form for the statement shall be established by a regulation of the minister responsible for the area. Where necessary, the court may seek the position of other participants in the proceeding before adjudication of the application.
However, the court extends reasonably the term set by the court, in particular the term set for responding to an action, appeal or petition after adjudication of the application for the grant of procedural assistance if the application for the grant of procedural assistance was not submitted without good reason or for the purpose of extending the term.
A reasonable term for substantiation of the appeal or payment of the state fee or correction of such a omission in the appeal which is related to the request for procedural assistance is set by the court after adjudication of the application for procedural assistance if the specified application was not submitted without good reason or for the purpose of extending the term. This does not preclude the restoration of the procedural term. If the court so requests, the recipient of procedural assistance shall explain whether or not his or her financial situation has changed and shall submit corresponding proof.
The same applies to the grant of procedural assistance to a third person participating in the proceeding in support of the plaintiff if the action is satisfied. If the plaintiff discontinues or withdraws an action because the defendant satisfied the claim after the action was filed, the provisions of subsection 3 of this section apply.
If an action is not satisfied or the hearing is refused or the proceeding of the matter is terminated, the court orders payment into the public revenues by the plaintiff, in proportion to the part of the action which was not satisfied, of the procedural expenses, from the payment of which the defendant or a third party participating in the proceeding in support thereof has been released or which the defendant or a third party participating in the proceeding in support thereof was allowed to pay in instalments, regardless of whether the plaintiff received procedural assistance for covering procedural expenses.
The documents need not be legalised or officially certified in another manner. If an application for procedural assistance is not satisfied, the court may order, by a ruling, payment of other procedural expenses and, above all, of translation and interpretation fees by the person who submitted the application. If the standard forms exist, the applicant and the forwarder of the application shall use these. If the court has failed to do so and the parties have not agreed otherwise, a security is provided by depositing money or securities in the deposit account of the court, or as an irrevocable and unconditional guarantee issued for an unspecified term by a credit institution of Estonia or another Member State of the European Union for the benefit of the other party.
If the security was provided in the form of a guarantee, the court orders termination of the guarantee. The party for whose benefit a security was provided has the right to file an appeal against a ruling on return of the security. In the cases specified in clauses 1 1 and 2 of this section, the court has no right to require the provision of a security by the plaintiff if: If it becomes evident in the course of a proceeding that the provided security is not sufficient, the defendant may require an additional security.
If the plaintiff fails to provide a security within such term, the court refuses to hear the action at the request of the defendant. It is presumed that the persons who are entitled by law to appeal against a ruling made in a proceeding on petition are the participants in the proceeding. A person is not a participant in a proceeding solely for the reason that he or she must be heard pursuant to law or that the court considers it necessary.
The court may also involve other persons or agencies in a proceeding to provide a position if this is necessary in the opinion of the court for more correct adjudication of the matter. Foreign associations of persons, foreign agencies and international organisations whose passive legal capacity is recognised in Estonia based on the provisions of private international law also have passive civil procedural legal capacity.
A minor of at least 15 years of age has the right to participate in a proceeding together with his or her legal representative. In a proceeding for placing a person in a closed institution, the person has active civil procedural legal capacity regardless of his or her age, unless he or she is less than fourteen years of age. An alien who, according to the law of his or her state, has no active civil procedural legal capacity, is deemed to have active civil procedural legal capacity if he or she has such capacity under Estonian law.
If the person refuses to comply with the directions of the court or the documents submitted fail to remove the doubts of the court, the court initiates a proceeding for appointing a guardian for the participant in the proceeding. If initiation of a proceeding for appointment of a guardian for a plaintiff, petitioner or appellant is impossible, the court refuses to hear the petition or appeal. In such event, the court sets the person a term for appointment of a representative.
A court decision on termination of the proceeding shall not be made in the proceeding before the expiry of such term. The defendant is a person against whom an action is filed. A party has the right to appeal against a court decision and other procedural rights prescribed by this Code. A participant in a proceeding has the same right in a proceeding on petition. Unless otherwise prescribed by law, an act of a plaintiff or defendant does not bear legal consequences for a co-plaintiff or co-defendant.
In such case the action against the initial defendant is deemed to be withdrawn. Following the substitution or involvement of a defendant, the hearing of the matter commences from the beginning. Universal succession is possible at every stage of a proceeding. A legal successor may enter or be involved in a proceeding without the consent of the opposing party or the legal predecessor as a third party in support of the legal predecessor thereof.
The same applies to a dispute arising from a lease contract or commercial lease contract of an immovable or the absence of such contract if a notation concerning the contract has been made in the land register. If the transferor in such case is the plaintiff, the defendant may submit an objection against the plaintiff that the plaintiff has lost the right of claim.
A third party without an independent claim may also enter a proceeding by filing an appeal against a court decision. In such case, the involvement of the person is adjudicated simultaneously with adjudication of the acceptance of the appeal.
A petition, appeal or another procedural act made by a third party without an independent claim has legal effect only if it is not contrary to a petition, appeal or act of the plaintiff or the defendant in whose support the third party is participating in the proceeding. The same term for filing an appeal or making another procedural act applies to a third party as applies to the plaintiff or the defendant in whose support the third party is participating in the proceeding, unless otherwise provided by law.
A third party may also submit an objection that the third party could not submit a petition, allegation, evidence or appeal due to the fact that the third party entered or was involved in the proceeding too late, or that the third party could not submit them due to the petitions or acts of the plaintiff or defendant in whose support the third party participated in the proceeding.
The third party may also submit an objection that the plaintiff or defendant failed, knowingly or due to gross negligence, to submit a petition, allegation, evidence or appeal, and the third party was not aware of such fact. After the end of pre-trial proceedings, the court consents to involvement of a third party only if there was good reason for the failure to file the petition in time and in the opinion of the court involvement of the third party is in the interests of adjudication of the matter.
A third party is deemed to be involved in the proceeding in support of the party who involved the third party as of the date on which the ruling to involve the third party was served on the third party. Participation of a representative in a matter does not restrict the personal participation in the matter of a participant in a proceeding with active civil procedural legal capacity.
A procedural act performed by a representative is deemed to have been performed by the participant in the proceeding who is represented.
This applies to admitting a fact or another statement in so far as the participant in the proceeding who is present does not immediately withdraw or amend the admission or statement. In a proceeding on petition in the Supreme Court, a participant in the proceeding may perform procedural acts and file petitions and applications personally or through an advocate. A participant in a proceeding may present positions in a session of the Supreme Court together with a sworn advocate.
A bankrupt may also be represented in an action in the Supreme Court by the trustee in bankruptcy. A representative must be appointed if: If a representative has been appointed only for one court instance, the representative's right of representation in such court instance also extends to the filing of appeals against the decisions made in such court instance. The name of the advocate is specified to the court by the Estonian Bar Association which also guarantees his or her attendance in the proceeding.
Upon appointment of an advocate, the court does not additionally check the existence of the prerequisites for the receipt of state legal aid. A person for the protection of whose interests an advocate was appointed may be required to return to the state any payment already received by the advocate if the person fails to protect his or her interests in court in any other reasonable manner except through the representative appointed to him or her by the court, or for another good reason.
The above does not release a participant in a proceeding from the payment of procedural expenses if the participant in the proceeding is required to pay such expenses based on the court decision. Such person is not paid any remuneration but may request reimbursement of his or her costs from the participant in the proceeding required to pay procedural expenses based on the court decision.
If the proceeding relates to an issue within the area of competence of a county governor, the relevant county governor represents the Republic of Estonia. If the petition pertains to the performance of the duties by the Government Office, the Republic of Estonia is represented by the Government Office.
If the court cannot establish the ministry or another administrator of state assets within whose area of administration the petition belongs, the court sends the statement or petition to the Ministry of Justice. The court may demand submission of a notarially certified or authenticated authorisation document from the party, as necessary. The grant of an authorisation is entered in the minutes.
A participant in a proceeding may restrict the scope of the representative's right of representation arising from law. Restrictions on the scope of the right of representation arising from law of the representative of a participant in a proceeding apply with regard to the court and other participants in the proceeding only to the extent to which they concern the right to terminate the court action by judicial compromise, discontinue the action or admit the claim, provided that the court and participants in the proceeding have been informed of the restrictions.
If a participant in a proceeding has several contractual representatives, every representative has the right to separately represent the participant in the proceeding. If the scope of the right of representation has been determined differently, this does not apply with regard to the court or the other participants in the proceeding. It is presumed that the authorisation of an advocate also terminates as of the time the opposing party and the court are notified of the appointment of a new advocate.
A participant in a proceeding has the right to demand, in every court instance, verification of the right of representation of the representatives of the other participants in the proceeding.
Advocates are presumed to have the right of representation. If a person who appears on behalf of the defendant has not certified his or her right of representation or submitted an approval within the term set by the court, the court makes a default judgment if the other prerequisites for making a default judgment are fulfilled. If a person who filed an appeal on behalf of a participant in a proceeding has not certified his or her right of representation or submitted an approval within the term set by the court, the court refuses to hear the appeal if the other prerequisites for refusal to hear the appeal are fulfilled.
This does not preclude or restrict the right of the participants in the proceeding to demand compensation for damage in an amount which exceeds the costs.
It is presumed that a participant in a proceeding has approved of the authorisation of a person who represented him or her in a proceeding if the participant in the proceeding subsequently granted the authorisation to the representative. An adviser cannot perform procedural acts or file petitions.
In a proceeding on petition the court may also deem other means of proof, including a statement of a participant in the proceeding which is not given under oath, to be sufficient in order to prove the facts.
Unless otherwise prescribed by law, the parties may agree on a division of the burden of proof different from that which is provided by law and agree on the nature of the evidence whereby a certain fact may be proved. The court may propose to the participants in the proceeding that they submit additional evidence.
In the case of failure to perform such obligation, the court may impose a fine on the obligated person or agency. A fact concerning which reliable information is available from sources outside the proceeding may be declared a matter of common knowledge by the court.
Admission means unconditional and express agreement to a factual allegation by means of a written statement addressed to the court, or made in a court session where such agreement is entered in the minutes. In matrimonial and filiation matters, the court evaluates admission together with other evidence. In such case the fact is not deemed to be admitted. Proof of law in force outside of the Republic of Estonia, international law or customary law must be given only in so far as the court is not acquainted with such law.
The court may also use other sources of information and perform other acts to ascertain the law. Substantiation of an allegation means giving the court the reasons for an allegation such that, presuming that the reasoning is correct, the court can deem such allegation to be plausible. Unless otherwise provided by law, a person required to substantiate may use all the evidence permitted by law for such purpose, including means of proof not deemed to be evidence by law or not in the procedural form prescribed for evidence, including signed confirmations.
Taking of evidence means an activity of the court performed with the aim to render evidence available and enable the examination thereof in the proceeding.
A request for taking of evidence shall also set out any information which enables the taking of evidence. A party may withdraw such consent only if significant changes in the procedural situation occur.
Evidence has no relevance to a matter, above all, if: Evidence may be disregarded after its evaluation if the evidence is clearly not reliable. If evidence has to be taken outside of the territorial jurisdiction of the court conducting proceedings in a matter, the court hearing the matter may make a ruling for performance, by letter of request, of a procedural act by the court within the territorial jurisdiction of which the evidence can be taken.
Where possible, the participants in the proceeding are given an opportunity to provide an opinion before amendment of such ruling. The participants in a proceeding are immediately informed of amendment of a ruling on taking of evidence. The participants in the proceeding are notified of the time and place of the procedural act; however, the absence of a participant in the proceeding does not prevent compliance with the letter of request.
The participants in the proceeding, their representatives and experts may participate in the taking of evidence to the same extent as they may participate in the taking of evidence in Estonia. The court panel adjudicating the matter, a judge acting on the basis of an order or an expert appointed by the court may participate in such direct taking of evidence by an Estonian court in another Member State of the European Union, which is permitted by Article The party who has provided evidence or requested the taking thereof may waive and withdraw evidence only with the consent of the opposing party, unless otherwise provided by law.
Absence of a participant in a proceeding summoned to court from a court session in which evidence is examined does not prevent the examination of the evidence unless the court rules otherwise. The participants in the proceeding may provide an opinion concerning the taking of evidence. Thereafter the participants in the proceeding may give statements with regard to such evidence.
The court also initiates pre-trial taking of evidence in order to safeguard evidence if a person substantiates that the copyright and related rights, or industrial property rights thereof have been infringed, or that a danger of infringement exists.
If pre-trial taking of evidence is initiated in order to safeguard evidence due to an infringement or danger of infringement of copyright and related rights or industrial property rights, the court may, among other, organise an inspection of samples and recording of a detailed description of samples with or without storing the samples, or seize the infringing goods, or the raw materials, equipment and related documents necessary for the production or marketing of the goods pursuant to the procedure for securing actions.
If pre-trial taking of evidence is followed by a court proceeding, the applicant cannot rely on the fact that the matter does not actually belong under the jurisdiction of that court. The ruling sets out the facts concerning which evidence must be taken and specifies the evidence which must be taken. The term shall not be longer than one month. If an action is not filed on time, the court cancels the acts performed in the course of pre-trial taking of evidence. The security must be provided by the due date set by the court.
If the security is not provided by the set due date, the court refuses to initiate pre-trial taking of evidence or cancels the acts performed in the course of the pre-trial taking of evidence. The court makes a ruling to order payment by the applicant of the advocate's fee and expenses to the extent prescribed by the State Legal Aid Act and may require that the applicant make, prior to the beginning of pre-trial taking of evidence, a reasonable advance payment to the court's deposit account.
If the advance payment is not made, the court may refuse to initiate pre-trial taking of evidence. In such case, the application and ruling specified in subsection 3 of this section, and a ruling on application of a measure are served on the opposing party immediately after application of the necessary measures.
The court informs the applicant of such request and the applicant has the right to file objections against the request with the court. A ruling made concerning such request is subject to appeal by the parties. The filing of an appeal against a ruling on the cancellation of the application of a measure for securing evidence or the substitution of one measure for securing evidence with another suspends the enforcement of the ruling. The court summons a witness to a court session and serves a summons on him or her.
A summons shall contain at least the following information: A witness shall also be cautioned against refusal to give testimony without good reason and against giving knowingly false testimony, and shall be required to sign the text of the testimony and the caution. The court determines the questions for which an answer by a witness is requested. A person summoned as a witness is required to appear in court and give truthful testimony before the court with regard to the facts known to him or her.
The court informs the participants in the proceeding of the receipt of a petition on refusal to give testimony. If the court does not consider the refusal to give testimony to be legal, the court requires the witness to give testimony by a ruling.
The witness has the right to file an appeal against such ruling. If the agency in possession of a state secret or classified information of foreign states does not confirm classification of the facts as state secret or classified information of foreign states or does not respond to the request within 20 days, the witness is required to give testimony.
Witnesses who have not been heard shall not be present in the courtroom during the hearing of the matter. A witness who has been heard stays in the courtroom until the end of the hearing of the matter unless the court gives the witness permission to leave earlier. The court may involve a child protection official, social worker or psychologist in the hearing of a minor over fourteen years of age. A witness is not cautioned if the witness does not understand the meaning of the caution due to mental illness, mental disability or other mental disorder.
The court reminds the witness of the force of the caution. A participant in the proceeding poses questions through the court.
With the permission of the court, a participant in a proceeding may pose questions directly. A witness summoned at the initiative of the court is questioned first by the plaintiff. Absence of a participant in a proceeding is not, as a rule, deemed to be good reason. The repeated summoning of a witness who has been heard to the next court session in a court of the same instance shall be reasoned.
The court may prohibit a witness from using notes in a court session. The testimony of a witness is deemed to be disclosed if the court and the participants in the proceeding do not consider the reading out of the testimony necessary. The witness is released immediately if the witness gives the testimony or the signature on being cautioned, or if the hearing of the matter has ended or the need for the witness to be heard has ceased to exist.
In the case of a legal person, a representative thereof may be heard under oath. The court may also hear under oath a party required to provide evidence concerning a disputed fact if one party requests it and the other party agrees. Regardless of the parties' requests and the division of the burden of proof, the court may at its own initiative hear under oath either or both parties if on the basis of the earlier proceedings and the evidence provided and taken the court is not able to form a position on the truth of a stated fact subject to be proven.
The court may also hear a party under oath at its own initiative if the party required to provide evidence wishes to give statements under oath, but the opposing party does not agree with it. A participant in a proceeding takes the oath orally and signs the text of the oath. The transcript, certified by the judge, of the original document submitted by the person to whom the original document is returned is kept in the file.
In such case the transcript of the document is kept in the file. If the demand of the court is not complied with, the court decides on the probative value of the transcript of the document.
Electronic documents are submitted to the court in the form of printouts or are transmitted electronically in a format which permits examination and safe storage thereof in the information system of the court. The court may demand the submission of the document in its entirety.
A foreign public document which does not bear an apostille and has not been legalised is evaluated by the court according to its conscience.
If a document needed for comparison is in the possession of the opposing party or a third person, submission of such document may be required on the same bases as submission of documentary evidence. The above also applies to electronic documents prepared in any other secure manner enabling establishment of the person who prepared the document and the time it was prepared. The court may order expert assessment or require submission of other evidence in order to clarify whether a document has been falsified.
The court informs the Prosecutor's Office of any doubts regarding falsification of a document. If a person requests that the court require submission of a document by another person, the person shall describe such document and its content in the request and set out the reason why he or she believes the document to be in the possession of such person.
A person may refuse to prepare a document for the same reason as he or she may refuse to submit a document. The court may fine a person who fails to submit a document without good reason. The persons may refuse to submit information in the manner specified in subsection 1 of this section on the same grounds as they may refuse to give testimony as a witness.
The court shall explain such right to the persons at the time of requesting the information. Objections shall be substantiated. The above does not apply in case submission of the document is requested from a party. The ruling is subject to appeal by the participants in the proceeding and the person who was required to submit the document. In such event the court sets the person requesting the document a term for requiring submission thereof.
If the court is convinced that the opposing party is in possession of a document, the court makes a ruling whereby the opposing party is required to submit the document to the court. If no transcript of the document has been presented, the court may deem the statements concerning the nature and content of the unsubmitted document made by the person who requested the evidence to be proven.
If a party, in order to prevent the opposing party from relying on a document, removes a document or renders it unusable, the court may deem the statements of the opposing party concerning the nature, preparation and content of the document to be proven. Physical evidence means a thing the existence or characteristics of which may facilitate ascertainment of the facts relevant to the adjudication of a civil matter. A document with the above characteristics is also deemed to be physical evidence.
The provisions concerning submission of documents also apply to submission and requiring the submission of physical evidence unless otherwise provided by this Chapter. A notation thereof is made in the file. If necessary, physical evidence is sealed. An expert or other qualified person may be asked to be present at the examination. The examination of physical evidence is recorded in the minutes of the court session. If necessary and possible, physical evidence is photographed or its relevant characteristics are recorded in some other manner.
Minutes are taken of an inspection. Thereafter the participants in the proceeding may give statements with regard to the physical evidence.
Inspection means any direct collection by the court of data concerning the existence or nature of a circumstance, including the inspection of an area or the scene of an event. Equality between children thus is definitively detached from the status of the parents.
Dogliotti, n 1 above, Bianca, n 4 above, Majello, Profili costituzionali della filiazione legittima e naturale Napoli: Morano, , passim; M. The assertion of the principle laid down in the provision under examination expresses the policy manifesto of the new law and has the status of a general canon of interpretation throughout the area of law.
The Legal Significance of Biological Family Relations Before the reform of Art , one of the residual differences in treatment between children born within wedlock and those born to unmarried parents resulted from the lack of recognition for biological family relations.
The Italian reform removed the discrimination against children born to unmarried parents, which prevented the establishment of legal relations biological family relations between a child born out of wedlock and the relatives of the parent who had recognised the child. The entry into force of the Constitution, followed by the reform of family law, gave rise to a progressive development of the principles, thereby leading to a change in the interpretation of the legislation based on the central focus on the individual as a human being and the principle of equality and non- discrimination.
It is important from the outset to stress the importance of supranational law and to point to its impact on the development of the principle of the equal status of all children. In the area of inheritance law, L. Cicu and F. The fact that children benefit from uniform legal status also implies uniform legal status for relationships with biological relatives arising as a result of recognition by a biological parent or a court order recognising filiation.
In reforming Art 74, Italian lawmakers adjusted the concept of stirpes — the branch of a family originating from an individual ascendant, establishing descendants and persons related by birth — enshrining the principle that a relationship by birth is associated with the fact of biological descent, irrespective of whether this was established within or out of wedlock.
Following the amendments to Arts 74 and , the very notion of family as a matter of law has now changed, as it is no longer necessarily founded on marriage.
Accordingly, a question arises concerning the consistency of that new framework with Art 29 of the Constitution, which stipulates that marriage is a constituent and foundational element of the family, and with the part of the last paragraph of Art 30 of the Constitution that guarantees full legal and social protection to children born out of wedlock, insofar as compatible with the rights of the members of the legitimate family.
Recognition by a Biological Parent and Court Orders Recognising Filiation As referenced above, the Codice Civile discriminated heavily against children born out of adulterous and incestuous relationships, who could not be recognised and to whom it was forbidden to make donations, and to some extent also to designate as beneficiaries of a will.
The law on the reform of family law eliminated the prohibition on the recognition of 19G. The new law on filiation, in Art of the Codice Civile, permitted the recognition of incestuous children born to persons who are related either by direct descent or ascent or related by collateral descent or ascent to the second degree, or by direct descent or ascent with the spouse of the other person, subject to authorisation by a court of law, considering the interest of the child and the need to avoid any detriment to him.
The prevailing view within the literature is that the legal status of a child born out of wedlock is not an immediate effect of conception, as it is necessary that the relationship of filiation be recognised by one or both of the parents or by a court of law.
According to the general view within the literature following the reform, the institution of recognition may be considered to reflect the development towards the separation of filiation from marriage, and an assertion of the protection of the relationship of filiation as a value that is self-standing and independent of the relationship between the parents.
If the child is not older than fourteen, he cannot be recognised without the consent of the other parent, where that parent has already recognised the child; however, that consent cannot be refused if the interests of the child so dictate paras 3- 4. This law violated the right to the status of parent, and correspondingly the right of the child to the status of son or daughter, with the result that the child was ineligible for recognition.
Pane ed, Il nuovo diritto di famiglia n 16 above, A change in surname may prevent the attribution to a person, within the social context in which he moves, of the full range of his conduct; it is the means by which the individual is commonly known within social relations. In addition, the surname offers a potential means for identifying any member of the family. Children Born of Incestuous Relationships The provision for a uniform status of filiation, Art of the Codice Civile which completes the cultural process of establishing equality of filiation,29 requires an end to the prohibition on the recognition of incestuous children, within the context of a clear distinction between the conduct of the parents and the dignity of the child, who is a person and certainly not a mere by-product of incest.
Within the literature, M. Court H. Bianca, Diritto civile n 21 above, Bardaro, La filiazione non riconoscibile tra istanze di tutela e valori giuridici Napoli: Edizioni Scientifiche Italiane, , The relationship between recognition and the commission of an offence pursuant to Art of the Italian Codice Penale, in other words if recognition in itself will result in the criminal responsibility of the parents, is a delicate issue, which cannot be considered here in the depth that it would deserve.
The abolition of the prohibition on the recognition of incestuous children is hailed today as one of the most significant innovations introduced by legge 10 December no The aim of this legislative change was to place the focus on the child and his rights.
In other words, to move beyond a perspective centred on the parent. The replacement 31 C. Horkheimer and T. Adorno, Lezioni di sociologia Torino: Einaudi, , A logical corollary of this, enshrined in Art of the Codice Civile, is that the child cannot leave the family home definitively or temporarily without their consent.
In the event of any differences of opinion relating to questions of particular importance, each parent may apply to the courts, which, after hearing the parents and ordering that the underage child be consulted if aged over twelve or if younger but able to understand the situation , will suggest the solutions that are best capable of pursuing the interest of the child and family unity.
If the dispute persists, the court will vest decision-making authority in the parent considered more capable of attending to the interests of the child in the specific case. Under the new version of Art bis of the Codice Civile, the child has the right to be maintained, educated and instructed and to receive moral assistance from his parents, taking due account of his abilities, inclinations and aspirations para 1.
This provision has now been incorporated into ordinary European law, establishing duties for the parent as a result of the filiation relationship, irrespective of the issue of parental responsibility. It should be pointed out that the right to moral assistance embraces the right of the child to receive loving care from his parents. Carapezza Figlia, J.