Procedural Law

Procedural Law

This area of law prescribes the procedures to be followed by the courts in all fields of civil and criminal law. The Code of Judicial Procedure contains detailed rules governing the conduct of the parties and the courts at various stages of the proceedings in the local courts, including appeals to a Court of Appeal or the Supreme Court.
What requirements must be satisfied for a party to commence legal proceedings? What needs to be stated in the writ submitted to the court by the prosecutor or by legal counsel representing a party in a dispute concerning, e.g., an alleged breach of contract? In a criminal proceeding, the prosecutor must describe the wrongful act committed by the defendant, which the prosecutor considers him/herself able to prove. In a private law case, the plaintiff (the party who has commenced the proceedings) often has to state, for example, the amount of compensation/damages being claimed. He or she will also have to describe the of the case that support, the granting of his claim, under the applicable legal rules. Frequently the parties will need to amend their claim or defence in the course of the proceedings, which is not however always permitted by the law.

It is important that no one is tried without being heard. The parties must be given an opportunity to present their case and sufficient time to refute the claims of the opposing party. All documentation submitted by one party must be passed on to the other, so that the latter may convey his or her views. A final hearing will usually be held. At this stage of the proceedings, oral evidence is presented. A party must inform the court in advance as to what evidence he/she is going to present at the trial. This enables the opposing party to prepare cross-examination and to decide on what rebuttal evidence will be necessary. The parties bear the burden of adducing the necessary evidence. The prosecutor will therefore seldom receive help from a court that has found the prosecutor to have failed in his/her duty to request examination of an important witness. Nor will the court inform the parties’ attorneys in private law cases (not involving family law) of the necessity to provide additional evidence on some important issue. Judges must be strictly neutral and must therefore refrain from giving advice or instructions to any party. A judge may put certain questions to a party or a witness if something is unclear. It is sometimes difficult to decide how far a judge may go in his attempts to disentangle confusing issues. The requirement of impartiality places limits on the questions that may be asked, lest they be perceived as favouring the position of one of the parties.

Evidence law is an important component of procedural law. The question of how evidence shall be evaluated arises in most cases, for example, when conflicting versions of facts are given by witnesses or parties. In criminal cases the burden of proof rests with the prosecution, who must adduce evidence case. In civil disputes, it is often difficult to decide which party bears the burden of proving his/her claim. A heavy burden of proof usually applies to one of the parties. If the issue concerns a causal connection which is difficult to prove, the burden will be lighter.

Procedural law also deals with the examination of witnesses. Is it permissible to ask questions about strictly personal matters, or questions that may be perceived as irrelevant or humiliating? May a party ask questions based on incorrect or questionable premises?
It is important that the general public and the press have insight into the way justice is administered. Therefore, as a general rule, court proceedings shall be public and everyone is entitled to be present in the court room and listen to the proceedings. It is only by way of exception that the court may exclude the public from a trial, for example, in proceedings involving professional secrets or committal to detention hearings.


Jaan Paju
Director of Doctoral Studies
Phone: 08-16 32 07

Teresa Simon Almendal
Vice Dean / Chairman of the Research Committee
Phone: 08-16 23 67

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