CRIMINAL PROCEDURE CODE

PART I
ON THE GENERAL PART

TITLE V
ON PROOF

CHAPTER II
ON EVIDENCE

SECTION IV
WITNESS TESTIMONY

Articles 119
Purpose and limits of depositions

A witness may be questioned about the facts of which he or she may be directly aware and constitute elements of proof.

Article 120
Indirect deposition

1. Where a deposition results from something heard being said to a certain person, the judge may call such a person to give testimony.

2. If the judge fails to call the person referred to in sub-article 120.1 to give testimony, the deposition that has been actually produced may not, to that extent, serve as evidence, except where the investigation of that person is not feasible on grounds of death, mental disorder or special vulnerability, particularly in the case of a sexual criminal offence, or where that person cannot be found.

3. Sub-article 120.2 applies to cases where the deposition results from reading a document written by a person other than the witness.

4. Under no circumstances shall the deposition by a person who refuses or is not in a position to indicate the person or the source whereby he or she has become acquainted with the facts serve as evidence.

Article 121
Public voices and personal convictions

1. The repetition of public opinions or rumours is not admissible as a deposition.

2. The manifestation of mere personal convictions on facts or the interpretation thereof is admissible only in the following cases and to the strict extent indicated therein :

(a) where it is not possible to distinguish it from a deposition on concrete facts ;
(b) where it occurs by means of any science, technique or art ;
(c) in regard to a subscribing witness.

Article 122
Eligibility and duty to witness

1. Any person who is not impeded to do on grounds of a mental disorder is eligible to serve as a witness and may only refuse to do so in the cases stated in the law.

2. The court checks the physical or mental fitness of any person to give testimony, where this is necessary to appraise his or her credibility and can be done without preventing the proceeding from running smoothly.

3. The check mentioned in sub-article 122.2, to be ordered prior to the deposition, does not impede the latter from being given.

Article 123
General duties of a witness

1. Except as otherwise stated in the law, a witness is required to fulfil the following duties :

(a) to appear, on the set date, time and venue, before the court, if lawfully summoned or notified, and to remain at the disposal of the court until such a time as the latter exonerates him or her from that obligation ;
(b) to take an oath, when being heard by a judicial authority ;
(c) to act upon the instructions given to him or her as to the way in which he or she is to give the deposition.

2. A witness is not obligated to answer any questions where he or she alleges that such answers might cause him or her to incur criminal liability.

Article 124
Disqualifications

A defendant or aggrieved person is disqualified from deposing as a witness in a case to which he or she is a party.

Article 125
Lawful refusal to give a deposition

1. The persons below may refuse to give a deposition as witnesses :

(a) progenitors, siblings, descendants, relatives up to the second degree, adopters, adoptees, and the spouse of the defendant ;
(b) a person who has been married to the defendant or who cohabits, or has cohabited, with the latter in a relationship similar to that of spouses, in relation to facts that have occurred during marriage or cohabitation.

2. The authority competent to take the deposition shall, under penalty of nullity, advise the persons referred to in sub-article 125.1 that they are allowed to refuse to give a deposition.

Article 126
Professional secrecy

1. Church or religious ministers, lawyers, medical doctors, journalists, members of credit institutions and other persons allowed or required by law to maintain professional secrecy may refuse to give a deposition on facts covered by that secrecy.

2. In the case of reasonable doubts about the lawfulness of the refusal to give a deposition, the judicial authority before which the incident has been raised carries out the necessary investigations; and if, once such investigations have been completed, the refusal is considered to be unlawful, the judicial authority orders or requests the court to order that the deposition be given.

3. A court higher than that where the incident has been raised, or its full bench, if the incident has been raised before the Supreme Court of Justice, may decide that a deposition be given by breaking professional secrecy where this proves to be justifiable in the face of the applicable provisions and principles of the criminal law, particularly in view of the principle of prevalence of the predominant interest; and the intervention is initiated by the judge, on a discretionary basis or at request.

4. Sub-article 126.3 does not apply to religious secrecy.

5. In the cases provided in sub-articles 126.2 and 126.3, a decision is made by the court or the Supreme Court of Justice after the agency representative of the profession related to the professional secrecy in question has been heard, under the terms of, and with the effects provided in, legislation applicable to that agency.

Article 127
Employees’ secrecy

1. Employees may not be enquired about facts that constitute a secret and with which they have become acquainted in the exercise of their functions.

2. Sub-articles 126.2 and 126.3 are correspondingly applicable.

Article 128
State secret

1. Witnesses shall not be questioned about facts that constitute a state secret.

2. The state secret referred to in the present article covers, namely, the facts the disclosure of which may, even if it does not constitute a crime, cause damage to the internal or external security of the Timorese State or to the defence of the constitutional order.

3. If the witness invokes a state secret, such must be confirmed, through the Minister of Justice, within 60 days from the date on which the Minister was officially notified by the court.

4. If no confirmation is obtained within the deadline set in sub-article 127.3, the deposition must be given.

Article 129
Inquiry rules

1. A deposition is a personal act and as such shall under no circumstances be given through a proxy.

2. A witnesses shall not be asked any suggestive or impertinent questions, or any other questions that might undermine the spontaneity and sincerity in which answers are to be given.

3. The enquiry shall deal primarily with the elements required to identify the witness, on his or her family relationships or common interests with the defendant, the aggrieved person or other witnesses, as well as on any other circumstances relevant to the assessment of the credibility of the deposition.

4. If required to take an oath, the witness shall take it and then give the deposition under the terms and within the limits established by law.

5. Where deemed advisable, a witness may be shown any briefs, documents related thereto, tools used for committing the criminal offence or any other items seized.

6. Where the witness presents any item or document that can serve as proof, mention of its presentation is made and such an item or document is to be properly kept or attached to the records.

Article 130
Immunities and prerogatives

1. Immunities and prerogatives established by the law in respect of the duty to witness and the manner in which and the place where a deposition is to be given are applicable in relation to a criminal proceeding.

2. Where legally applicable, the adversarial principle shall be applied in a case.

Article 131
Probative effect

The probative effect of witness testimony is assessed at the court’s discretion.

CRIMINAL PROCEDURE CODE

PART II
ON ORDINARY PROCEDURES

TITLE II
ON TRIALS

CHAPTER II
ON HEARINGS

SECTION III
ON PRODUCTION OF PROOFS

Article 271
Statements by witnesses

1. Witnesses are questioned, one after the other, by the order in which they have been indicated, unless the judge reasonably decides otherwise.

2. A witness is questioned by the person who has indicated him or her, and shall then be cross-examined by the remaining procedural participants. The witness may be questioned again if issues that have not been addressed in the initial questioning arise during the cross-examination.

3. The judges may, at all times, ask any questions deemed relevant to the discovery of the truth.

4. The witnesses indicated by a defendant may only be questioned by the defenders of the other defendants if those defenders request the judge to do so and the latter deems it necessary for a reasonable adjudication of the case.