Part One
GENERAL PART
Chapter VII
EVIDENCE
2. Evidentiary Actions
b) Questioning Witnesses
a) Basic provisions
Witness
Article 91
A witness is a person for whom it is probable that he will provide information about a criminal offence, the perpetrator, or other facts being determined in the proceedings.
Capacity and Duty to Provide Testimony
Article 92
Every person capable of presenting his knowledge or impressions in connection with the subject-matter of the testimony has a capacity to give evidence.
The injured party, subsidiary prosecutor or private prosecutor may be questioned as witnesses.
All persons being summoned as witnesses are required to respond to the summons as well as to testify, unless specified otherwise by this Code (Articles 93 and 94).
Exclusion from the Duty of Testifying
Article 93
The duty to testify does not apply to :
1) a person who would by his statement violate the duty to preserve a state, military or official secret until the competent authority or person from public authorities revokes the secrecy of information or releases him from that duty ;
2) a person who would by his statements violate the duty of maintaining confidentiality of information acquired in a professional capacity (a religious confessor, lawyer, physician, midwife, etc.), unless released from such obligation by a special regulation or a statement of the person for whose benefit the confidentiality was established ;
3) a person who is the defence counsel, in connection with what he was told by the defendant ;
By exception from paragraph 1 of this Article, the court may decide, at the proposal of the defendant of his defence attorney, to examine a person who has been excluded from the duty to testify.
Exemption from the Duty of Testifying
Article 94
The following are released from the duty of giving evidence :
1) the defendant’s spouse or common-law spouse or other person with whom the defendant lives in a common law marriage or other permanent association ;
2) the defendant’s blood relatives in the direct line, collateral relatives to the third degree, and in-laws to the second degree ;
3) adopter and adoptees of the defendant.
Juveniles who are in view of their age and mental development not capable of understanding the significance of the right not to have to testify may not be questioned as witnesses, except if the defendant so demands.
The authority conducting proceedings is required to caution the person referred to in paragraph 1 of this Article that he does not have to testify before questioning or as soon as it learns about his relationship with the defendant,. The caution and reply are entered into record.
A person with valid grounds to decline to testify in connection with one of the defendants is relieved of the duty to testify in connection with all the other defendants, if by the virtue of his testimony it cannot be limited only to the other defendants.
Preconditions for Questioning Witnesses
Article 95
Witnesses will be warned that they are required to tell the truth and that they may not omit anything, and then cautioned that perjury constitutes a criminal offence.
Witnesses will also be cautioned that they are not required to answer certain questions if its is probable that they would thereby expose themselves or persons close to them referred to in Article 94 paragraph 1 of this Code to serious disgrace, considerable pecuniary damage or criminal prosecution. The caution will be entered into record.
Witnesses will then be asked to provide their first name and surname, personal ID number, name of father or mother, temporary residence, permanent residence, , place and year of birth and information about their relationships with the defendant and injured party. Witnesses will be cautioned that they are required to notify the authority conducting proceedings of every change of temporary or permanent residence.
If a person has been examined as a witness in contravention of Article 93 paragraph 1 of this Code, or a person exempt from the duty to give evidence (Article 94) has not been duly cautioned or has not expressly waived that right or if the caution and waiver were not entered into record, or if a witness’s statement was obtained in contravention of Article 9 of this Code, the court’s decision may not be based on the testimony of that witness.
Swearing-in Witnesses
Article 96
Witnesses shall be required to swear in before giving evidence.
Witnesses may swear in before the trial only where there is a danger that poor health or another reason could prevent them from attending the trial. The reasons for swearing in on that date will be entered in the record.
The text of the oath is: “I swear by my honour that I will tell only the truth about everything I am asked, and that I will omit nothing”.
Witnesses take the oath orally, by reading its text, or by giving an affirmative reply after being read out the text by the authority conducting proceedings. Mute witnesses able to read and write sign the text of the oath, and deaf, blind or mute witnesses who are illiterate are sworn in with the help of an interpreter.
Refusals of witnesses to take an oath and their reasons will be entered in the record.
Witnesses who do not Take Oaths
Article 97
The following witness does not have to take an oath :
1) a person who has not come of age at the time of the questioning ;
2) a person unable to comprehend the significance of the oath due to the state of his mental health.
Rules on Questioning Witnesses
Article 98
A witness is questioned individually and without the presence of other witnesses . A witness is required to give testimony orally.
Following the general questions, witnesses are asked to state everything known to them about the case.
After a witness has completed his statement, and it is necessary to fill in gaps in the statement, amend or clarify it, he will be asked questions which must be clear, unambiguous and understandable, which may not be deceiving or be based on an assumption that he has admitted to something which he has not admitted, and the questions may not be leading, except during cross-examination at the trial.
Witnesses are always asked for the origin of their knowledge.
Injured parties questioned as witnesses will be asked whether they wish to realise their restitution claim in the criminal proceedings.
If the questioning of a witness is being conducted through an interpreter or a translator, or if a witness is deaf, blind or mute, the questioning is conducted in the manner specified in Article 87 of this Code.
Confronting Witnesses
Article 99
A witness may be confronted with another witness or the defendant, if their statements are not in agreement in respect of the facts being proved.
The provisions of Article 89 paragraph 2 of this Code are applied to the confrontation of witnesses.
Recognition of Persons or Objects
Article 100
If it is necessary to establish whether a witness has recognised a certain person or a certain object, or their characteristics as he had described them, the recognition is performed in accordance with Article 90 of this Code.
The recognition of persons in the pre-investigation proceedings and during the investigation is conducted so as to prevent the person being recognised from seeing the witness, and from preventing the witness from seeing that person before the formal recognition procedure.
During the pre-investigation proceedings and the investigation, the recognition of persons is performed in the presence of the public prosecutor.
Punishing Witnesses
Article 101
If a duly summoned witness fails to appear and fails to justify his absence, or without authorisation or a justifiable reason leaves the location where he was to be questioned, the authority conducting proceedings may order that he be brought in by force, and the court may fine him up to 100,000 dinars.
If a witness appears, and after being cautioned about the consequences refuses to testify without legal justification, he may be fined up to 150,000 dinars by the court, and if he continues to refuse to testify, may be punished again with the same sanction.
An appeal against a ruling pronouncing a fine is decided by the panel. An appeal does not stay execution of the ruling.
b) Protection of Witnesses
Basic Protection
Article 102
The authority conducting proceedings is required to protect an injured party or witness from an insult, threat and any other attack.
The public prosecutor or the court will caution a participant in proceedings or other person who, before the authority conducting proceedings insults an injured party or a witness, threatens him or endangers his safety, and the court may also fine him up to 150,000 dinars.
An appeal against a ruling pronouncing a fine is decided on by the panel. The appeal does not stay execution of the ruling.
Upon receiving notification from the police or the court or upon learning about the existence of violence or a serious threat directed at an injured party or a witness, the public prosecutor will undertake criminal prosecution or notify the competent public prosecutor thereof.
A public prosecutor or the court may request that the police undertake measures to protect an injured party or a witness in accordance with the law.
Especially Vulnerable Witness
Article 103
The authority conducting proceedings may ex officio, at the request of parties or the witness himself, designate as an especially vulnerable witness a witness who is especially vulnerable in view of his age, experience, lifestyle, gender, state of health, nature, the manner or the consequences of the criminal offence committed, or other circumstances.
The ruling determining a status of an especially vulnerable witness is issued by the public prosecutor, president of the panel or individual judge.
If it deems it necessary for the purpose of protecting the interests of an especially vulnerable witness, the authority conducting proceedings referred to in paragraph 2 of this Article will issue a ruling appointing a proxy for the witness, and the public prosecutor or the president of the court will appoint a proxy according to the order on the roster of attorneys submitted to the court by the bar association competent for designating court appointed defence counsels (Article 76).
No special appeal is allowed against a ruling approving or denying a request.
Rules on Examining an Especially Vulnerable Witness
Article 104
An especially vulnerable witness may be examined only through the authority conducting the proceedings, who will treat the witness with particular care, endeavouring to avoid possible detrimental consequences of the criminal proceedings to the personality, physical and mental state of the witness. Examination may be conducted with the assistance of a psychologist, social worker or other professional, which will be decided by the authority conducting proceedings.
If the authority conducting proceedings decides to examine an especially vulnerable witness using technical devices for transmitting images and sound, the examination is conducted without the presence of the parties and other participants in the proceedings in the room where the witness is located.
An especially vulnerable witness may also be examined in his dwelling or other premises or in an authorised institution professionally qualified for examining especially vulnerable persons. In such case the authority conducting proceedings may order application of the measures referred to in paragraph 2 of this Article.
An especially vulnerable witness may not be confronted with the defendant, unless the defendant himself requests this and the authority conducting proceedings grants the request, taking into account the level of the witness’s vulnerability and rights of defence.
No special appeal is allowed against a ruling referred to in paragraphs 1 to 3 of this Article.
Protected Witness
Article 105
If there exist circumstances which indicate that by giving testimony or answering certain questions a witness would expose himself or persons close to him to a danger to life, health, freedom or property of substantial size, the court may authorise one or more measures of special protection by issuing a ruling determining a status of protected witness.
The measures of special protection include questioning the protected witness under conditions and in a manner ensuring that his identity is not revealed to the general public, and exceptionally also to the defendant and his defence counsel, in accordance with this Code.
Measures of Special Protection
Article 106
The measures of special protection ensuring that the identity of a protected witness is not revealed to the public are excluding the public from the trial and prohibition of publication of data about the identity of the witness.
The measure of special protection whereby data about the identity of a protected witness is withheld from the defendant and his defence counsel may be ordered by the court exceptionally if after taking statements from witnesses and the public prosecutor it determines that the life, health or freedom of the witness or a person close to him is threatened to such an extent that it justifies restricting the right to defence and that the witness is credible.
The identity of the protected witness withheld in accordance with paragraph 2 of this Article will be revealed by the court to the defendant and his defence counsel no later than 15 days before the commencement of the trial.
In deciding on the measures of special protection referred to in paragraphs 1 and 2 of this Article, the court will endeavour to order a harsher measure only if the purpose cannot be achieved by the application of a more lenient measure.
Initiating Proceedings for Determining Protected Witness Status
Article 107
The status of a protected witness may be granted by the court ex officio, or at the request of the public prosecutor or the witness himself.
The request referred to in paragraph 1 of this Article contains: the witness’s personal data, data on the criminal offence in connection with which the witness is being examined, facts and evidence indicating that in the case of giving testimony there exists a danger to the life, body, health or property of substantial size of the witness or persons close to him, and a description of the circumstances to which the provision of evidence relates.
The request is submitted in a sealed cover marked “witness protection – strictly confidential” and is submitted during the investigation to the judge for preliminary proceedings, and after the indictment is confirmed, to the president of the panel.
If during his examination the witness withholds the provision of the data referred to in Article 95 paragraph 3 of this Code or his replies to certain questions, or refuses to give testimony, with the explanation that the circumstances referred to in Article 105 paragraph 1 of this Code exist, the court will invite the witness to act within three days in accordance with the provisions of paragraphs 2 and 3 of this Article.
If it deems the withholding of data, replies, or testimony clearly unfounded, or the witness fails to act in accordance with the provisions of paragraphs 2 and 3 of this Article within the prescribed time limit, the court will apply the provisions of Article 101 paragraph 2 of this Code.
Deciding on Determining Protected Witness Status
Article 108
During the investigation the judge for preliminary proceedings decides on determining protected witness status by issuing a ruling, and after the indictment is confirmed, the panel. The public is excluded from the trial if the decision is taken at that time (Article 363), without the exceptions prescribed by Article 364 paragraph 2 of this Code.
The ruling determining protected witness status contains a pseudonym of the protected witness, the duration of the measure and the manner in which it will be implemented: alteration or erasure from the record of data on the identity of the witness, concealment of the witness’s appearance, examination from a separate room with distortion of the witness’s voice, examination using technical devices for transferring and altering sound and picture.
The parties and the witness may appeal against the ruling referred to in paragraph 1 of this Article.
An appeal against a ruling of the judge for preliminary proceedings is decided on by the panel (Article 21 paragraph 4), and in other cases the panel (Article 21 paragraph 4) of the immediately higher court. A decision on the appeal is rendered within three days of the date of receiving documentation.
Examining a Protected Witness
Article 109
When the ruling determining protected witness status become final, the court will, by a special order that represents a secret, confidentially notify the parties, defence counsel and the witness about the date, hour and location of the questioning of the witness.
Before the commencement of the questioning the protected witness is notified that his identity will not be revealed to anyone but the court, the parties and the defence counsel, or only to the court and the public prosecutor, under the conditions referred to in Article 106 paragraphs 2 and 3 of this Code, and is informed about the manner in which he will be examined.
The court will caution all those present that they are required to keep confidential data on the protected witness and persons close to him and on other circumstances which may lead to the
exposure of their identities, and that divulging a secret represents a criminal offence. The caution and the names of those present will be entered in the record.
The court will deny any question that requires an answer that might reveal the identity of the protected witness.
If the examination of the protected witness is being conducted using technical means for altering sound and image, they are handled by a professional.
The protected witness signs the minutes with the pseudonym.
Protecting Data on a Protected Witness
Article 110
Data on the identities of the protected witness and persons close to him and on other circumstances which may lead to the exposure of their identities will be sealed under a separate cover marked “protected witness – strictly confidential”, sealed and submitted for safekeeping to the judge for preliminary proceedings.
The sealed cover may be opened only by a court deciding on a legal remedy against a judgment. The reason, date and hour of its opening and the names of the members of the panel informed about the data referred to in paragraph 1 of this Article will be marked on the cover. The cover will thereafter be resealed, the date and time of resealing being indicated on the cover, and returned to the judge for preliminary proceedings.
The data referred to in paragraph 1 of this Article represent secret data. Besides public officials, all other persons who learn about them in any capacity whatsoever are required to maintain their confidentiality.
Duty of Notification about Special Protection Measures
Article 111
The police and the public prosecutor are required during the collection of information from citizens to inform them about the special protection measures referred to in Article 106 of this Code.
Analogous Application of Provisions on a Protected Witness
Article 112
The provisions of Articles 105 to 111 of this Code apply accordingly to the protection of an undercover investigator, expert witness, professional consultant and professional.
Other forms of cooperation
Procedure for witness testimony - national proceedings
Examination of witnesses - national proceedings
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