TITLE III
EVIDENCE AND MEANS OF EVIDENCE
CHAPTER III
MEANS OF EVIDENCE
Section III
Statements of the witnesses
Art. 78 - The person who knows of any fact or circumstance that may lead to finding the truth in the criminal trial may be heard as witness.
Art. 79 - The person obliged to keep a professional secret cannot be heard as witness in relation to facts and circumstances that he/she learned about while exerting his/her profession, without the approval of the person or institution towards which he/she has the obligation of keeping the secret.
The quality of witness comes before that of defender, in relation with the facts and circumstances that a person learned about before becoming defender or representative of one of the parties.
Art. 80 - The accused person or defendant's spouse and close relatives are not obliged to testify as witnesses.
The judicial bodies will inform the persons mentioned in the above paragraph about this as soon as the provisions of art. 84 paragraph 3 have been satisfied.
Art. 81 – The juvenile may be heard as witness. Up to 14 years old, his/her hearing will be conducted in front of one of his parents or of his/her tutor or of the person to whom he/she has been given for upbringing and education.
Art. 82 - The injured person may be heard as witness, if he/she does not constitute himself/herself as a civil party and will not take part in the trial as victim.
Art. 83 - The person summoned as witness must come at the place and on the day and hour mentioned in the summons and has the duty to declare everything he/she knows in relation to the deeds of the case.
Art. 84 - The witness is first asked about his name, surname, age, address and occupation.
In case of doubt over the witness' identity, this will be established by any means of evidence.
The witness will then be asked whether he/she is spouse or relative of any of the parties and about his/her relations with the latter, as well as whether he/she has suffered any damage as a result of the offence.
Art. 85 - Before being heard, the witness will take the following oath: “I swear to tell the truth and not to hide anything that I know. So help me God!”
While taking the oath, the witness will keep his/her hand on the cross or on the Bible.
The reference to divinity in the oath is changed according to the religious creed of the witness.
For the witness of other religion than Christian, the provisions of par. 2 are not enforceable. The irreligious witness shall take the following oath: “I swear on my honour and conscience to tell the truth and not to hide anything that I know."
The witnesses who, from reasons of conscience or religion, do not take the oath, will utter the following formulation in front of the court: "I oblige myself to tell the truth and not to hide anything that I know."
The situations mentioned in paragraphs 3, 4 and 5 are acknowledged by the judicial body on the basis of the statements given by the witness.
After taking the oath or uttering the formulation stipulated in paragraph 5, the witness will be informed that, by not telling the truth, he commits the offence of false testimony.
All these will be mentioned in the written statement.
The juvenile under 14 years does not take oath; however, he is asked to tell the truth.
Art. 86 - The witness is informed about the object of the case and the deeds and circumstances for whose proof he/she was proposed as witness, being asked to declare everything he/she knows in relation to them.
After the witness has given his statement, he may be asked questions connected to the deeds and circumstances that need to be acknowledged in the case, related to the parties' person, as well as to the way in which he learnt about the things declared.
The provisions of art. 71-74 are enforced accordingly to the witness' hearing.
Art. 86(1) – If there is evidence or solid indications that by declaring the real identity of the witness or his/her place of domicile or residence the life, corporal integrity or freedom of the latter or of another person might be endangered, the witness may be given permission not to declare this information, being attributed a different identity under which to appear in front of the judicial body.
This measure may be disposed by the prosecutor during criminal prosecution and by the court during trial, upon motivated request from the prosecutor, witness or any other entitled person.
The information about the real identity of the witness is mentioned in an official report that will be kept at the prosecutor’s office which performed or supervised the performing of the criminal investigation or, according to the case, at the court, in a special place, in a sealed envelope, in conditions of maxim security. The official report will be signed by the person who handed the request, as well as by the one who disposed the measure.
The documents concerning the real identity of the witness shall be presented to the prosecutor or, according to the case, to the panel of judges, in conditions of strict confidentiality.
In all cases, the documents regarding the real identity of the witness will be introduced in the criminal file only after the prosecutor, by ordinance, or, according to the case, the court, by closing, established that the danger which determined taking measures for witness protection has disappeared.
The statements of witnesses who were attributed another identity, reproduced in the prosecutor’s report, according to art. 86(2) par. 5, as well as the witness’ statement, recorded during trial and signed by the prosecutor present at the witness’ hearing and by the president of the panel, according to art. 86(2) par. 6, thesis I, may serve to finding out the truth only to the extent to which they are corroborated with facts and circumstances resulted from all the evidence in the case.
Other persons who may be heard as witnesses that were attributed another identity are undercover investigators.
Dispositions provided by par. 1-6 are also applied to experts.
Art. 86(2) – In the situations provided by art. 86(1), if there are appropriate technical means, the prosecutor or, according to the case, the court may allow the witness to be heard without actually being present at the place where the criminal investigation body is or in the room where the judgment takes place, through technical means provided in the following paragraphs.
Recording the witness’ statement, in the conditions described at par. 1, will be performed in the presence of the prosecutor.
The witness may be heard through a television network, with the image and voice distorted so as not to be recognised.
The statement of the witness heard, in the conditions stated at par. 1 and 2, are recorded through technical video and audio means and are rendered entirely in written form.
During the criminal investigation, a report is made in which the witness’ statement is accurately rendered and which is signed by the prosecutor present at the witness’ hearing and by the criminal investigation body and kept with the case file. The witness’ statement, transcribed, shall be signed also by the latter and kept in the file set down at the court, in the conditions provided under par. 5.
Video and audio tapes, on which the witness’ statement was recorded, as an original, sealed with the prosecutor’s office seal or, according to the case, to that of the court in front of which the statement was made, are kept in the conditions provided at art. 5. The video and audio tapes recorded during the criminal investigation shall be handed, at the ending of the criminal investigation, to the competent court, together with the case file, and shall be kept in the same conditions.
The provisions of art. 78, 85 and of art. 86 par. 1 and 2 shall be applied accordingly.
Art. 86(3) – The court may admit, upon request from the prosecutor, from the parties or ex officio, the carrying out of a technical expertise regarding the means for hearing the witnesses, in the conditions provided under art. 86(2).
Art. 86(4 )– In the cases regarding violence offences between the members of the same family, the court may dispose the witness under 16 years old shall not be heard in the courtroom, allowing the presentation of a previously performed, as audio-video recordings, in the conditions provided under art. 86(2) par. 2, 4, 5 and 7.
Art. 86(5) – The prosecutor who performs or supervises the criminal investigation or, according to the case, the court may dispose that the police units supervise the witness’ domicile or residence or to ensure for the latter a temporary supervised residence, as well as to accompany him/her to the prosecutor’s office or to court and back to the place of residence or domicile.
The measures provided at art. 1 will be eliminated by the prosecutor or, according to the case, by the court, when they decide that the danger which imposed them has disappeared.
Other forms of cooperation
Cooperation under procedures of national law
Procedure for witness testimony - national proceedings
Examination of witnesses - national procedures for ICC proceedings
Examination of witnesses - national proceedings
Assistance of States in the attendance and testimony of witnesses and production of documents
EDIT.