In the light of the currently binding provisions of the criminal procedure, it is the parties, not the court, who take evidence at the judicial stage of the proceedings. Both the defendant and the prosecutor are entitled to lodge evidentiary motions and to take evidence aimed at supporting the indictment or defending against it. Only in exceptional circumstances, evidence is taken by the court ex officio.
It should be remembered that an evidentiary motion in the criminal procedure ought to contain: specification of evidence (e.g. testimony of a witness) and circumstances which are supposed to be proven with this evidence (e.g. the fact that the defendant was in a given place at a given time). However, an evidentiary motion is dismissed if:
- The requested evidence is inadmissible (e.g. due to the prohibition to interrogate a clergyman as to the circumstances learned during a confession).
- The circumstances which are to be proven have no significance for the case.
- The circumstances which are to be proven have already been evidenced in accordance with the applicant's statement.
- The evidence is not useful to prove given circumstances.
- The evidence cannot be taken.
- The evidentiary motion is obviously intended to protract the proceedings.
Nevertheless, an evidentiary motion cannot be dismissed due to the fact that earlier evidence demonstrated the results contrary to the applicant's statements.
It should be emphasized that evidentiary motions can be filed by parties to the criminal procedure: the suspect and the aggrieved party in the preparatory proceedings (also through the agency of or assisted by proxies or attorneys), and the prosecutor and the defendant in the judicial proceedings.
[Legal status as at July 2015]