Preliminari liudytojų apklausa: įrodymų rinkimas prieš ieškinį

A preliminary witness examination (voorlopig getuigenverhoor) is a court hearing in which witnesses are questioned under oath before you start a case on the merits. Since 1 January 2025, Article 196 of the Dutch Code of Civil Procedure (Rv) only allows it before the case is pending, or at the latest before it is entered on the court’s cause list.

What is a preliminary witness examination for?

It lets you establish the facts before you decide whether to sue. Dutch civil procedure has no US-style discovery, so these preliminary measures are the main way to gather evidence early.

Three purposes justify a request. First, assessing your position: is there a claim or defence worth pursuing? Second, preserving evidence, for example when a witness is ill, elderly or moving abroad. Third, informing settlement: sworn testimony changes what both sides think the case is worth.

The judge presides, the witness testifies under oath and the registrar records the evidence in an official record (proces-verbaal). That record can be used in later proceedings, where the court weighs it freely under Article 152(2) Rv. The instrument is common in shareholder disputes, construction and professional liability claims, contested dismissals, and insurance and fraud cases. Our overview of Nyderlandų bylinėjimosi teisė shows where it fits.

Kas pasikeitė 2025 m. sausio 1 d.?

The Act on the simplification and modernisation of the law of evidence (Wet vereenvoudiging en modernisering bewijsrecht) took effect on 1 January 2025. Guidance that still refers to the former Article 186 Rv is out of date.

• Vienas režimas, viena peticija. Witness examination, expert report, site inspection and production of documents are now combined in Articles 196-204 Rv. You can request several measures in one petition.
• Only before the case on the merits. Once the case is pending and on the cause list, evidence is taken within those proceedings.
• Party witnesses count fully. The old limit on the weight of a party’s own testimony has gone. Under Article 164 Rv a party can be a witness, and if a party fails to appear or answer, the court may draw the inference it sees fit.
• Wider right to documents. Under Article 194 Rv a party to a legal relationship with a sufficient interest can obtain specific data about that relationship. Under Article 195a Rv the court can order a third party to provide them.

Article 21 Rv also obliges parties to state all relevant facts fully and truthfully; if they do not, the court can draw adverse inferences. Gathering the facts early helps you meet that duty.

Kaip vyksta procedūra?

You file a petition (verzoekschrift) with the court that will probably have jurisdiction over the case on the merits (Article 197 Rv). If the case belongs to the subdistrict court (kantonrechter), you file it there.

The petition must describe the expected dispute, the facts you want to establish and the witnesses to be heard. Under Article 198 Rv the court decides only after a hearing to which you and the other party are summoned, unless the other party is unknown, the matter is very urgent or the other party has no objection.

The threshold is low. Under Article 196(2) Rv the court grants the request unless the information sought is not specific enough, there is insufficient interest, the request conflicts with due process, it is an abuse of power, or other weighty reasons oppose it. The most common refusal is a “fishing expedition” without a defined factual question.

Under Article 200(2) Rv there is no appeal against the decision on a witness examination, unless the court decides otherwise; a decision on production of documents can be appealed within four weeks (Article 200(1) Rv). Our article on preliminarūs posėdžiai pagal Nyderlandų įstatymus explains how the sessions run.

Who does what at the hearing?

The judge presides, administers the oath and decides whether a question may be put. Under Article 201 Rv the normal rules on witness examination apply.

Your lawyer questions first; the other party’s lawyer follows and may object. The registrar records the statement, reads it back, and the witness signs it. Corrections are made at that moment, so your lawyer must listen closely to the read-back.

Must a witness attend and answer?

Yes. Under Article 165(1) Rv everyone lawfully summoned must testify. A witness who refuses can be detained (gijzeling) at the request of the interested party for up to one year (Article 173 Rv). False testimony under oath is a criminal offence.

Article 165 Rv recognises three exceptions:

• Šeima. The spouse, registered partner or life partner (current or former) of a party, and relatives by blood or marriage up to the second degree.
• Professional confidentiality. Persons bound to secrecy by office or profession, such as lawyers, notaries and doctors, about what was confided to them in that capacity.
• Savęs parodymas. A witness may refuse a specific question if the answer exposes them, or close relatives, to the risk of a criminal conviction for a serious offence (misdrijf).

A privilege is claimed question by question, not as a refusal to attend. The judge decides whether it applies.

Why go first with sworn testimony?

It turns uncertainty into information before you commit to proceedings. You learn whether the key witness supports your version and holds up under questioning.

It also protects against loss of evidence: in commercial disputes that take years, people leave the company, move abroad or stop cooperating. And it shifts negotiations, especially combined with a prejudgment attachment for the claim itself; see our note on ikiteisminio arešto Nyderlandų teisėje. Under Article 199 Rv the court can also hold a hearing after the examination to explore a settlement.

How do you prepare the examination?

Preparation decides the result. The hearing is short and there is no second attempt: once given under oath, an account stays on the record.

Choosing and ordering the witnesses

Start from the facts you must prove under Article 150 Rv, then find who has direct knowledge of each. Witnesses with first-hand knowledge carry the case; a colleague copied on an email adds corroboration.

For technical questions, a preliminary expert report under Article 202 Rv is usually stronger than a witness. Hear your own witnesses before a hostile one, so the hostile witness must contradict an account already on the record.

Klausimų formulavimas

Open with broad questions (what, who, when, where, how), then close with precise ones on dates, attendees and what was said. Ask one question at a time, in neutral words.

Avoid leading questions: the judge may disallow them, and an answer the questioner supplied carries little weight later. Show the witness the document and let them read it, instead of summarising it.

Preparing a witness without coaching

You may explain the hearing, the oath and the relevant documents to a friendly witness. You may not tell the witness what to say or discuss other witnesses’ evidence.

A rehearsed account that collapses under questioning harms the case more than a nervous witness who simply tells the truth. Improper influence also reduces the weight the court gives the record under Article 152(2) Rv.

Kokia rizika?

The instrument cuts both ways. Four risks recur.

• Tu rodai savo ranką. The petition and questions reveal your theory to the other side early.
• Įrodymai gali būti prieš jus. Once on the record, the other side can use it. Know what a witness is likely to say before the summons goes out.
• Time and cost. The petition, the hearing and the examination take months. Costs include the court fee, lawyer’s fees and witness expenses; court fees are adjusted each year.
• Procedūriniai trūkumai. If the other party had no fair chance to attend and question, the record loses much of its weight.

When does another instrument fit better?

A witness examination fits where the question is what people did, said or knew. Other questions need other tools, which can be combined in the same petition.

• Techniniai klausimai: a court-appointed expert under Article 202 Rv.
• The state of a place or object: a site inspection under Article 203 Rv.
• Dokumentai: production under Articles 194 and 195a Rv, also against a third party; the holder may refuse only on professional privilege or weighty reasons.
• Evidence at risk of disappearing: a conservatory attachment to protect evidence, with leave of the interim relief judge (Article 205 Rv).
• Real urgency: summary proceedings (kort geding) remain the faster route.

How is the evidence weighed later?

Under Article 150 Rv the party relying on facts must prove them, unless a special rule or reasonableness and fairness shifts the burden. That is why the examination usually helps the claimant most.

Under Article 152(2) Rv the court weighs the evidence freely. The record proves what the witness said, not that it is true. A consistent witness whose account fits the documents is believed; one whose memory improves over time is not. The judge on the merits may hear a witness again. Our Nyderlandų civilinės teisės vadovai cover the underlying rules.

Ką turėtumėte patikrinti kaip prašančioji šalis?

• Has the case on the merits already been filed and entered on the cause list? Then the preliminary route is closed.
• Can you describe the specific facts to be established, to avoid a fishing-expedition refusal?
• Do you know roughly what each witness will say?
• Should you combine the request with production of documents or an expert report?
• Which court will probably have jurisdiction over the case (Article 197 Rv)?

Į ką, kaip priešinga šalis, turėtumėte atkreipti dėmesį?

• Does the request meet a refusal ground in Article 196(2) Rv, such as insufficient specificity or abuse?
• Do you want to file your own request for measures, which the court can handle together (Article 196(1) Rv)?
• Will you attend and question the witnesses? Your absence weakens your later position.
• Do any of your witnesses have a privilege under Article 165 Rv?
• Does the examination create a moment to explore settlement under Article 199 Rv?

Ką galime padaryti su preliminariu liudytojo apklausimu?

Mūsų civilinių bylų teisininkai act for requesting and opposing parties.

• We assess whether an examination will help or harm your position.
• We draft the petition so it meets Article 196 Rv and avoids the refusal grounds.
• We combine the witness examination with a request for documents or an expert report where useful.
• We prepare the witnesses, conduct the questioning and check the read-back of the record.
• We oppose an unfounded request and question the other side’s witnesses.
• We use the record in settlement talks or in the case on the merits.

Santrauka

• A preliminary witness examination gives you sworn testimony before you sue.
• Since 1 January 2025 it is only possible before the case on the merits is pending and on the cause list (Article 196 Rv).
• You can combine witnesses, an expert, a site inspection and production of documents in one petition.
• Witnesses must attend and answer, except for family, professional privilege and self-incrimination (Article 165 Rv).
• Preparation decides the outcome: specific facts, the right witnesses, no coaching.

Dažnai užduodami klausimai