Part I
GENERAL PROVISIONS
Chapter VII
EVIDENTIARY ACTIONS
4. Examination of witnesses
Persons examined as witnesses
Article 102
(1) Persons who are likely to have knowledge and to be able to provide information on a criminal offense, its perpetrator and other relevant circumstances shall be summoned and examined as witnesses.
(2) An injured party, injured party as subsidiary prosecutor and private prosecutor may be examined as witnesses.
(3) Every person summoned as a witness shall have the obligation to appear at court and, unless otherwise prescribed by the present Code, shall also have the obligation to testify.
Persons who may not be examined as witnesses
Article 103
The following persons may not be examined as witnesses:
1) a person whose testimony would violate his duty to keep a state, military or official secret until the competent authority releases him of this duty in a written statement;
2) a person whose testimony would violate the obligation of a legal privilege of confidentiality regarding the information gained in his professional capacity (member of clergy, lawyer, physician, nurse, midwife, psychologist, social worker, etc.), unless he has been released from this obligation by a special regulation or document, or a statement entered into the record by the person to whom such legal privilege of confidentiality belongs, or such a statement by his legal successor;
3) a minor who, in view of his age and mental development, is incapable of understanding the importance of his right not to testify (Article 104, paragraph 1), unless the defendant himself demands so;
4) the defendant’s defense lawyer on what he, as the defense counsel, has been told by the defendant;
5) a person who is completely incapable of testifying due to his mental or physical illness or age;
Persons exempt from the duty to testify
Article 104
(1) The following persons shall be exempt from the duty to testify:
1) the defendant’s spouse and the person with whom he lives in a lasting common-law marriage;
2) the defendant’s blood relatives in a direct line, collateral relatives to the third degree and his in-laws to the second degree;
3) a person who is the defendant’s godfather or best man, or to whom the defendant is godfather, or a person who is godfather to the defendant’s children, or to whose children the defendant is godfather;
4) the defendant’s adopted child or adoptive parent.
(2) The court in charge of the criminal proceedings shall have the obligation to instruct the persons referred to in paragraph 1 of the present Article, prior to their examination or as soon as it learns of their relationship with the defendant, that they do not have to testify. The instruction and the answer shall be entered in the record.
(3) A person who has reason not to testify against one of the defendants shall be exempt from the duty to testify against the other defendants if his testimony cannot be, by nature of the matter, limited only to these other defendants.
Procedural consequences of mistakes and abuse of the authority in charge of the
proceedings during the examination of a witness
Article 105
If a person who may not be examined as a witness (Article 103) or a person who does not have to testify (Article 104) has been examined as a witness and has not been instructed of his right not to testify or has not explicitly waived it, or if this instruction and waiver has not been entered in the record, or if the testimony has been obtained from a witness by coercion, threat or similar forbidden means (Article 143, paragraph 5), a judicial decision cannot be based on such a testimony.
Right of a witness not to answer certain questions
Article 106
A witness is not obliged to answer individual questions by which he would be likely to expose himself or persons referred to in Article 104, paragraph 1 of the present Code to serious disgrace, considerable material damage or criminal prosecution.
Questions that may not be posed to the injured party or witness
Article 107
The injured party or a witness must not be asked questions that refer to his sexual activity and preferences, political and ideological preferences, racial, national and ethnic background, ethical criteria and other strictly personal and family circumstances, unless the answers to such questions are in direct and obvious connection with the need to clarify the important elements which constitute the criminal offense which is the subject matter of the proceedings.
Summoning a witness
Article 108
(1) A witness shall be summoned by serving a written summons which shall indicate the name and surname and occupation of the summoned person, when and where he is to appear, the criminal case in connection with which he is summoned, an indication that he is summoned as a witness and the consequences of unjustifiable non-compliance with the summons (Article 115).
(2) A witness who has agreed to this in the preliminary investigation or in a previous hearing and who has confirmed that he has the necessary technical requirements for being served such a summons, may also be summoned by e-mail or any other electronic messaging system, if the authority which is summoning the witness can thus receive a feedback that the witness has personally received such a summons.
(3) A minor younger than 16 shall be summoned as a witness through his parents or legal representative, except where this is not possible for reasons of urgency of proceedings or other circumstances.
(4) A witness who by reason of old age, illness or serious disability is unable to comply with the summons may be examined in his apartment or other place he is in.
Method of examining a witness
Article 109
(1) A witness shall be examined separately and without the presence of other witnesses. A witness shall answer questions verbally.
(2) A witness shall first be told that it is his duty to speak the truth and that he may not withhold anything, whereupon he shall be warned that false testimony constitutes a criminal offense. A witness shall also be instructed that he need not answer any of the questions referred to in Article 106 of the present Code and the instruction shall be entered in the record.
(3) Subsequently, the witness shall be asked to state his first name and surname, the name of his father or mother, occupation, place of residence, place and year of birth and his relation to the defendant and the injured party. The witness shall be warned of the obligation to report to the court any change in address or place of residence.
(4) The witness shall be asked if he has the technical requirements for receiving summons by e-mail or any other electronic messaging system and, if so, whether he is the only person who has access to the PC, or has the password for opening e- mails and possibility to confirm by electronic means the receipt of the summons served to him in this way, and whether he agrees to be served summons in this way if the need for another examination arises.
(5) When a minor is examined, especially if he has been injured by the criminal offense, special care shall be taken to prevent any harmful effects of the hearing on his state of mind. If necessary, the minor shall be examined with the assistance of a psychologist, pedagogue or some other expert.
(6) After the general questions, the witness shall be asked to say everything he knows about the case, whereupon questions shall be asked so that the statement he has provided may be checked, supplemented, and clarified. The use of deception or leading questions shall not be allowed during the examination of a witness. A witness shall always be asked how he knows the things he is testifying about.
(7) Witnesses may be confronted if they give testimonies which substantially conflict with one another. Only two witnesses may be confronted at a time. In the confrontation of witnesses, provisions of Article 97, paragraph 2 of the present Code shall be applied.
(8) The injured party examined as a witness shall be asked whether he intends to pursue an indemnification claim in the criminal proceedings.
Rules for the examination of very sensitive injured parties and witnesses
Article 110
(1) The injured parties and witnesses whom the authority in charge of the proceedings has assessed as very sensitive in view of their age, experience, lifestyle, gender, state of their health, nature or consequences of the criminal offense, i.e. other circumstances of the case, and decided that the examination on the premises of the authority in charge of the proceedings might have harmful effects on their state of mind and physical state shall be examined in the way referred to in Article 108, paragraph 4 of the present Code.
(2) The injured party or witness referred to in paragraph 1 of the present Article may be examined at his apartment or in some other place where he is, or in an authorized institution/organization which employs experts for the examination of very sensitive persons.
(3) A proxy shall be appointed to the injured party or witness referred to in paragraph 1 of the present Article during the examination, when the authority in charge of the proceedings deems this necessary for providing assistance to the said persons..
(4) Questions to the injured party or witness referred to in paragraph 1 of the present Article may be asked only through the authority in charge of the proceedings, which will address this injured party or witness with special care, trying to avoid any harmful effects of the criminal proceedings on his person and physical and mental state.
(5) The injured party or witness referred to in paragraph 1 of the present Article may be examined with the assistance of a psychologist, social worker or some other expert, when this is necessary to prevent any harmful effects of the criminal proceedings on his person and mental and physical state, and the authority in charge of the proceedings may decide to use picture and sound transmission devices in the examination of this person. Such an examination is held without the presence of parties and other participants in the proceedings in the room where the injured party or witness is situated, so that the parties, defense lawyer and persons who have the right to ask questions shall do so through the authority in charge of the proceedings, psychologist, pedagogue, social worker or some other expert.
(6) The court may decide to examine the injured party or witness referred to in paragraph 1 of the present Article in a closed session, in which case all data on the identity of this person shall constitute an official secret.
(7) The identification of the defendant by the injured party or witness referred to in paragraph 1 of the present Article shall be carried out in all stages of the criminal proceedings in such a way that would completely prevent the defendant from seeing and hearing the injured party or witness.
(8) The injured party or witness referred to in paragraph 1 of the present Article may not be confronted with the defendant, and he may be confronted with other witnesses only at their own request.
(9) No special appeal is allowed against the decisions made by the authority in charge of the proceedings on the basis of the provisions of the present Article.
Identification of persons or objects by a witness
Article 111
(1) If it is necessary to determine whether a witness can recognize a person or object he has previously described, he shall be shown the person in question together with, as a rule, between five and eight other persons unknown to him, whose distinctive features should be similar to those described by him, or the object in question together with the objects of the same or similar kind, whereupon the witness shall be asked to say whether he can identify this person or object with certainty or with a certain degree of probability and, in case of an affirmative answer, he should point at the identified person or object.
(2) In the preliminary investigation, the identification of persons shall take place in the presence of the Public Prosecutor, in such a way as to prevent the person who is the object of identification from seeing the witness and to prevent the witness from seeing this person before the identification proceeding begins.
Examination of a witness through an interpreter and examination of a witness with
a disability
Article 112
If a witness is examined through an interpreter, or if a witness is deaf or mute, he shall be examined as provided for in Article 101 of the present Code.
Oath or solemn promise of a witness
Article 113
(1) A witness shall be requested to take an oath or solemn promise prior to his testimony.
(2) A witness may take an oath or solemn promise before the trial only if there is a probability that he will be unable to attend the trial because of illness or some other important reason. The reason why the oath or solemn promise was taken at that time shall be entered in the record.
(3) The authority in charge of the proceedings shall ask the witness if he wishes to take an oath with religious contents or a solemn promise. The authority in charge of the proceedings must not ask the witness to state his religious affiliation or non- affiliation to a certain religion and shall have the obligation to inform the witness that he does not need to state his religious affiliation.
(4) If the witness decides to take the oath, its text shall go as follows: “I swear by one God and everything I hold holiest and dearest in this world that I shall say the truth about everything I testify of and about everything I am asked and that I shall not withhold anything I know of this matter, and as I tell the truth here, so help me God.”
(5) The witness shall have the right to adapt the text of the oath referred to in paragraph 4 of the present Article to the name of God used in his religion, i.e. the witness may use another term which for him has the appropriate religious meaning.
(6) If the witness decides to take the solemn promise, its text shall go as follows: “I solemnly promise and swear upon my honor that in my testimony I will say nothing but the truth about everything I am asked and that I will not withhold anything that has come to my knowledge.”
(7) The witness shall take the oath or solemn promise orally, by reading its text or by answering affirmatively after the text of the oath, i.e. solemn promise has been read out by the authority in charge of the proceedings or the official person he authorizes. Mute witnesses who can read and write shall sign their name under the text of the oath, i.e. solemn promise and deaf or mute witnesses who cannot read or write shall take the oath, i.e. solemn promise with the assistance of an interpreter.
(8) The refusal and reasons for the refusal of a witness to take the oath, i.e. solemn promise shall be entered in the record.
Persons who may not take the oath or solemn promise
Article 114
The oath or solemn promise may not be taken by persons;
1) who are under age at the time of the hearing;
2) against whom it has been proved or reasonable suspicion exists that they have committed the criminal offense they are testifying about or have participated in it’s commission;
3) whose mental state prevents them from understanding the importance of the oath or solemn promise.
Failure of a witness to respond to summons and refusal to testify
Article 115
(1) If a witness who has been duly summoned fails to appear and does not justify his failure to appear or if he leaves the place where he should be examined without permission or a valid reason, such a witness may be compelled to appear and may be fined with up to CSD 150,000.
(2) If the witness appears, but, after being warned of the consequences, refuses to give testimony without legal justification, he may be fined with up to CSD 150,000, and if he still refuses to testify, he may once again be fined with up to CSD 300,000. If the witness still refuses to testify after being ordered to pay the second fine and the proceedings are being held before the court, he may be imprisoned. This imprisonment shall last for as long as the witness refuses to testify or until his testimony becomes unnecessary, i.e. until criminal proceedings end with a final judgment, but shall not exceed a period of one month.
(3) The chamber (Article 24, paragraph 6) shall decide on an appeal against a ruling imposing a punishment of a fine or imprisonment. An appeal against the ruling on sentencing shall not stay the execution of the ruling.
General rule of witness protection
Article 116
(1) The authority in charge of the proceedings shall have the obligation to protect the witness and the injured party from insults, threats and any other attacks.
(2) A participant in the proceeding or any other person who insults or threatens the witness or injured party or brings his safety into jeopardy in front of the authority in charge of the proceedings, shall be warned or fined by the authority in charge of the proceedings. In case of violence or serious threat, the court shall notify the Public Prosecutor for the purpose of prosecution and in the case the violence or serious threat occurred in the preliminary investigation or investigation before the Public Prosecutor, he himself shall initiate prosecution or inform the Public Prosecutor having jurisdiction about it. Provisions of Article 115 of the present Code shall accordingly be applied regarding any fine(s).
(3) The Public Prosecutor, Investigative Judge, President of the Trial Chamber or the President of the Court may request from police to take special measures for the protection of the witness and injured party.
Examination of a protected witness
Article 117
(1) If there are circumstances that clearly indicate that the life, health, physical integrity, freedom or any considerable assets of a witness in a criminal proceeding punishable by imprisonment of ten years or any stricter penalty, or persons close to him, would be seriously threatened due to his testimony and answers to some questions, the court may decide to grant this person the status of a protected witness and order a special method of examination of this witness in the criminal proceedings in order to prevent his identity from being disclosed during the proceedings.
(2) The decision referred to in paragraph 1 of the present Article may exceptionally be made in the case of criminal proceedings for a criminal offense punishable by imprisonment of four years or any stricter penalty, if special circumstances indicate that the witness or persons close to him may be exposed to the threat referred to in paragraph 1 of the present Article, and an alternative method of protection of a witness would be either impossible or considerably more difficult.
(3) The special way of examination of a protected witness includes one or several special protective measures:
1) closed trial;
2) alteration, removal from the record or ban on the disclosure of any data referring to the witness’s identity;
3) withholding of any data referring to the witness’s identity;
4) examination of the witness under a pseudonym;
5) concealment of the face of the witness;
6) testifying from a separate room through voice-distortion devices;
7) examination of the witness in a room outside the courtroom, in another place in the country or abroad, communicated to the courtroom by means of the picture and sound transmission devices, with the possibility of using voice- and image-distortion devices.
(4) When special protection measures include the use of technical devices, a skilled professional person shall handle these devices under the supervision of the authority in charge of criminal proceedings.
(5) Examination in the way referred to in paragraph 3, item 7 of the present Article may be also carried out when the presence of the witness or injured party at the trial cannot be ensured, and such an examination may be carried out also through international legal assistance in criminal matters.
Ruling on granting a person the status of a protected witness
Article 118
(1) The court may rule to grant the status of a protected witness at the request of a person who either should be examined as a witness or has already been examined as a witness in the previous stages of the proceedings, or ex officio, i.e. at the request of a party and with the consent of the person who should be granted such a status. The request must be in writing and substantiated and, exceptionally, upon the commencement of the trial, a witness may make such a request verbally, at the time
the court decides on the exclusion of public on which a special record shall be made.
(2) The request referred to in paragraph 1 of the present Article shall be filed in a sealed envelope bearing the marking: “witness protection – official secret – confidential.” The request shall contain: personal data on the person who should be examined as a witness, or on the witness; description and statutory title of the criminal offense which constitutes the subject matter of the proceedings in connection with which the person should be examined; circumstances to which the testimony would most likely refer; circumstances that result in the serious threat referred to in Article 117, paragraph 1 of the present Code, or due to which the condition referred to in Article 117, paragraph 2 of the present Code has been met.
(3) The court shall make the decision referred to in paragraph 1 of the present Article after assessing the probable importance of witness’s testimony for the proceedings and seriousness of the threat referred to in Article 117, paragraph 1 of the present Code, or fulfillment of conditions referred to in Article 117, paragraph 2 of the present Code, and for this purpose the court shall schedule a separate hearing which shall be attended by the witness to whom the request refers and the parties. Immediately upon the conclusion of this hearing, the court shall decide on the status of protected witness and inform the persons who have attended the hearing verbally about the contents of its decision. Once the court renders a ruling granting the protected witness status, it shall explicitly warn the present persons of their obligation to keep the information on the identity of the witness a secret and of the consequences of violation of this obligation.
(4) In its ruling on awarding the status of protected witness, the court shall specify one or several special protection measures referred to in Article 117, paragraph 3 of the present Code and the way for protecting the information on the identity of the witness in the documents.
(5) The Court shall serve its ruling denying the request referred to in paragraph 1 of the present Article on the person who has filed the request and shall not communicate it verbally.
Keeping a protected witness’s identity secret during the criminal proceedings
Article 119
(1) Before the examination begins, the protected witness shall be informed that the data referring to his identity shall not be disclosed to anyone, except to the court and the parties, i.e. the authority in charge of the proceedings, and he shall be informed about the special protection measures which shall be applied during his examination.
(2) The authority in charge of the proceedings shall warn all present persons of their obligation to keep secret all information they directly or indirectly learn about the protected witness and persons close to him and of the fact that to divulge this secret constitutes a criminal offense. This warning shall be entered in the record together with the names and surnames of all present persons.
(3) The authority in charge of the proceedings shall forbid any question the answer to which might directly or indirectly disclose the identity of the protected witness.
(4) The protected witness shall sign the record using his pseudonym.
(5) Exceptionally, in especially justified cases, if the authority in charge of the proceedings assesses that the life, health or freedom of the witness have been seriously threatened and that the witness is convincing, the defendant and his lawyer may be denied temporarily and at the latest until the scheduling of the trial all or some information about the identity of the protected witness.
(6) The defendant and his lawyer must be given the opportunity in the proceedings to contest the justifiability of the measure referred to in Article 117, paragraph 3 of the present Code.
Keeping the identity of a protected witness secret in the documents
Article 120
(1) Data on the identity of a protected witness and persons close to him as well as of some other facts that may directly or indirectly lead to the disclosure of their identities shall be placed in a special envelope bearing the marking “witness protection – official secret – confidential,” sealed by the official seal of the court and given to the Investigative Judge for safekeeping.
(2) The sealed envelope may be opened only by the second instance court when deciding on an appeal against the decision of the first instance court that ended the criminal proceeding. The date and hour of the opening and names of the members of the trial chamber of the second instance court who are familiar with its content shall be written on the envelope. After that, the envelope shall be resealed and returned to the Investigative Judge of the first instance court.
(3) Service on a protected witness shall be made in such a way as to ensure that his identity remains a secret.
(4) Data on the protected witness and persons close to him represent an official secret which must be kept by all persons who learn it in any way and in any capacity.
Protection of data on a protected witness in criminal proceedings instituted as a
result of his testimony
Article 121
In criminal proceedings instituted as a result of the testimony of a protected witness, the secrecy of information on the protected witness shall be ensured.
Appropriate implementation of some provisions on the protected witness
Article 122
Provisions of Articles 117 to 121 shall apply, as appropriate, to a suspect, defendant and injured party who also appears as a witness in criminal proceedings.
Questioning of persons - national proceedings
EDIT.