Calling 112 whenever we are witnessing a domestic conflict can save a life!
I. What is the meaning of “witness”? Who can be a witness?
Witness is any person who has direct knowledge of facts or factual circumstances representing evidence in civil or criminal cases, which means that the person in question took part in a discussion, event, or episode, and can narrate how everything happened in front of a court or another investigation body.
II. Who cannot be a witness in court? Which are the exceptions?
According to art. 315/NCPC, someone who is going through any of the following circumstances cannot be a witness in court:
- They have an interest in the said case, which means that they are trying to obtain a certain benefit after the conflict has been solved, or can request the same rights as the plaintiff;
- They are the enemy, or have a common interest with any of the parties;
- They were sentenced for perjury, meaning they made false statements, or did not tell everything they knew regarding the fundamental facts they were questioned about;
- They were placed under court interdiction; court interdiction is a measure decided by the court; its aim is to safeguard a person with impaired judgment, who is unable to take care of their own interests because of their mental derangement or infirmity;
- They are the spouse, former spouse, fiancée, or paramour of one of the parties;
- They are a relative or in-law up to and including the third rank.
Additionally, no party or litigant cannot pledge as witness, according to art. 115 of the Procedural Criminal Law, id est the plaintiff, the defendant, the third parties (someone who can request the same rights as the plaintiff) who become part of the process on their own accord or forcefully, the suspect, and the victim.
It is also important to mention that, in a court case, the parties can agree, expressly or implicitly, that relatives and in-laws up to and including the third rank, the spouse, the former spouse, the fiancée, or the paramour, as well as the persons who are the enemy of or have the same interests as one of the parties may be heard. According to art. 316/NCPC, when a case on consanguinity in lineal descent, divorce, or other familial relations takes place, relatives and in-laws, except for the descendants, may be heard too.
III. Who are the persons who may be exempt from testifying?
Article 317/NCPC shows that the persons exempt from testifying are:
- religious servants, medics, pharmacists, lawyers, notary publics, bailiffs, mediators, midwives and medical assistants, and any other professionals to whom the law imposes to keep confidential information or professional secrecy regarding the facts they discovered under their job or within the exercise of their profession, even after their activity ended; it is important, thus, that the person gains knowledge of these facts under their service or within the exercise of their profession.
- judges, prosecutors, and public clerks, even after the termination of their employment contract, on secret circumstances of which they learned while in this position;
- those who through their answers could expose themselves, or their spouse, former spouse, fiancée, paramour, or any relative or in-law to a criminal penalty or to public contempt.
Exceptionally, the Procedural Civil Law continues to explain, medics, pharmacists, lawyers, notary publics, bailiffs, mediators, midwives, and medical assistants, and any other professionals to whom the law imposes to keep confidential information or professional secrecy, could testify if they were released of the professional secret or confidential information by the party interested in keeping the secret, unless the law imposes otherwise. In other words, if the party interested in keeping the secret releases the above-mentioned persons from keeping the secret, they can testify but only if the law does not provide otherwise.
Another exception appears in the case of judges, prosecutors, and public clerks, who can testify if the authority or the institution around which it functions or functioned approves.
In criminal cases, i.e. when a crime was committed, art. 117/NCPP shows that the following persons have the right to refuse to testify:
- a suspect’s or defendant’s spouse, ancestors and descendants in direct line, as well as their siblings;
- persons who were a suspect’s or defendant’s spouse;
- persons who are/were a suspect’s or defendant’s paramour.
However, the above-mentioned persons can express their agreement to testifying and are exempted from the obligation to testify against the other suspects or defendants (only when there are more suspects or defendants in a case), if their statement can be limited only to the latter.
IV. The Summoning Procedure of the Witness.
Art. 154, in conjunction with art. 173/NCPC indicates what the summoning procedure is, ruling that it is made ex officio, through procedural agents or other employees of the court. Usually, communication is made in a sealed envelope, together with the proof of delivery or the report, and the envelope will bear the note “For Justice. To be given right away.”
Exceptionally, when communication cannot be made in the above-mentioned way, it can be made through a recommended letter with declared contents and confirmation of receipt, in sealed envelope, to which adds the proof of delivery or the report and the communication.
It is important to note that, besides these summoning procedures, communication can also be made through fax, phone call, telegraph, electronic mail or any other means that ensure the transmission of the contents of the document and the confirmation of its receipt, if the party gave their corresponding data to the court with this declared aim. The procedural Civil Code further states the way in which the receipt of the summons shall be confirmed, namely, through a form that will contain: the name of the court, the date of the communication, the name of the registrar who ensures the communication, and the designation of the released documents. The form should be filled by the addressee with the date of receipt, the name and signature of the person with a brief for receiving the mail, and it shall be sent to the court through fax, electronic mail, or other means.
Another important thing to mention is that courts have direct access rights to the electronic databases or other information systems owned by the authorities and public institutions for obtaining the data and the information necessary for the completion of the summoning procedure.
In connection with the summoning place, art. 155/NCPC states:
- natural persons shall be summoned at their domicile, and if they do not live there, summoning shall be made at the known residence or the place they chose; in the absence of these, summoning can be made at the place where they permanently do their current activities;
- the helpless or those who have a limited legal competence, by proxy or legal caretakers, at their domicile or headquarters, as applicable; if a special guardian was named, according to art. 58, summoning shall be made through this guardian, at their professional headquarters
- the subjects hospitalized in sanitary units, at their administration;
- garrison enlisted men, at the unit they are a part of, through its commandment;
- those who are part of the crew of a marine or fluvial vessel, other than military, if they do not have a known domicile, at the port office where the vessel is recorded;
- prisoners, at the administration of the place where they are imprisoned;
- the personnel of diplomatic missions personnel, consular offices, and the Romanian citizens sent to work within international organizations, as well as the family members who live with them, when abroad, through the Ministry of External Affairs; other Romanian citizens who are abroad, on a business trip, including the family members who accompany them, through the central bodies who sent them, or under the ferule of which the company that sent them is;
- persons who are abroad, other than those mentioned above, if they have their domicile or residence known, through written summons sent through a recommended letter with declared content and confirmation of receipt; the receipt notice card at the Romanian Post, within which will be mentioned the documents that are sent, shall serve as proof of completion of procedure, unless international treaties or conventions of which Romania is part of, or special legislative acts provide otherwise. If the domicile or the residence of those living abroad is not known, summoning shall be made through posting (at the court and outside the court). In all cases, if those living abroad have a known representative in the country, only the latter shall be summoned;
- those with unknown domicile or residence through posting (at the court and outside the court);
- the successors, until their intervention in the suit, through a special curator named by the court, at his domicile.
As far as handing the summons is concerned, this can be done personally to the person who was summoned, wherever they are located. For those who live in a hotel or a dorm, the summons shall be handed, in their absence, to the administrator of the hotel or institution, or, if they are not present, to the guard or his replacement, while for the sick who are hospitalized, or kept in nursing homes or other such endowments for medical or social assistance, the summons shall be handed over to the administrator.
On the receipt of the summons, the one entitled to receive it shall sign the proof of delivery, and if they refuse to sign it, or for well-founded reasons they cannot sign it, the delivery agent shall write a report where they shall show these reasons. Similarly, if the addressee refuses to receive the summons, the agent shall leave it in the mail box. In the absence of a mail box, the agent shall post a notification, on the entrance door of the addressee, showing the time when it was posted or delivered, the identification data of the agent and of the addressee, the number of the file, and the name of the court where the file is located, the procedural acts it concerns, the due date when the addressee can reclaim the summons from the court (after a day, but no later than seven days since the posting of the notification, or when it is urgent, no later than three days), the note that if, without a well founded reason, the addressee does not reclaim the summons within the specified period of seven days, or, three days, as appropriate, the summons shall be considered reclaimed when the due date is reached, and the signature of the agent who delivered or posted the notification.
V. The refuse to appear before the court vs. The Inability to appear before the court.
The Procedural Civil Code rules that the court may issue a peremptory writ against the witness who misses during the first summoning, which means that the court can issue an order through which the witness can be brought before the court when the person refuses to come. Additionally, if, after the peremptory writ has been issued, the witness cannot be found or does not appear before the court, the court proceeds to the judgment of the case in the absence of the witness. Moreover, art. 313/NCP shows that in urgent cases, the court may rule the impeachment of the witness with a warrant from the first term (the date when the court assigns for the debate of the case in a public session).
On the other hand, art. 314 rules that if the witness cannot show themselves in front of the court because of a disease or another heavy hindrance, they may be heard from the place where they are, with the summoning of the parties.
IV. Identifying the witness.
Before listening to the testimony of the witness, the president of the court shall ask them to show:
- their last name, first name, profession, domicile, and age;
- if they are a relative or in-law of any of the parties and on what level;
- if they are under any of the parties’ hires.
For the criminal cases, the Procedural Criminal Code states that the witness shall firstly learn about the object of the case, and afterwards they are asked if they are a family member or former spouse of the suspect, defendant, injured person, or of the other parties in the criminal case, if they are friends or enemies of the these persons, and if they suffered any damage as a result of the crime.
VII. Rights and obligations of the witness.
Art. 120/NCPP states that the judicial body must inform the witness on the capacity under which they are heard and the facts and circumstances for the demonstration of which the person is heard as witness, so that afterwards they are informed on the rights and duties they have.
According to the Procedural Criminal Law and the Procedural Civil Law, the witness has the following rights:
- the right not to denounce themselves (art. 118/NCPP—Witness testimony given by a person who, in the same court case, after their testimony, was or became a suspect or defendant, cannot be used against them. The judicial bodies have the duty to mention, when recording the testimony, the previous procedural capacity of the person in question.);
- the right to submit to protective measures;
- the right to the reimbursement of transportation, housing, and meal costs, if they come from a different area;
- the right to compensation for the coverage of the income they would have obtained if they carried out their activities during their absence from work occasioned by their hearing as witness, established in relation to the state or job they have, as well as the actual time loss.
Art. 326/NCPC mentions that the pecuniary rights are ensured by the party who proposed the witness and they are established, on demand, by the court.
The obligations of the witness are:
- the duty to submit to the calls of the judicial bodies, after being informed that if this duty is not fulfilled, the court may issue a peremptory writ against the witness;
- the duty of communicating, in writing, in 15 days, any change of the address where they were summoned, after being informed that if this duty is not fulfilled, the court may order a fine between 100 lei and 1000 lei against them;
- the duty of testifying according to reality, after being informed that the law punishing the crime of perjury (applicable in civil cases too).
Regarding the protection of the threatened witnesses, the Procedural Criminal Law establishes a series of measures and rules. Therefore, according to art. 125/NCPP, the judicial bodies of competent jurisdiction shall grant them the status of threatened witness when there is a reasonable suspicion that the life, physical integrity, freedom, assets or professional activity of a witness or of a member of their family could be jeopardized as a result of the data provided by them to judicial bodies or of their statements. After granting the status of a threatened witness, the judicial body disposes one or more measures provided by art. 126 or 127/NCPP.
Art. 126/NCPP provides the protection measures that can be ordered during the criminal investigation by the prosecutor, through a reasoned order, at the same time as granting the status of threatened witness, as follows:
- surveillance and guard of the witness’ residence or providing of a temporary dwelling space;
- accompanying and ensuring protection to the witness or to their family members during travels;
- protection of identity data, by issuing them a pseudonym under which the witness shall sign their statement;
- hearing of a witness without them being physically present, through audio-video transmission devices, with their voice and image distorted, when the other measures are not sufficient.
These measures can be ordered either ex officio or upon request by the witness, one of the parties or a main trial subject (meaning the suspect or the damaged person), and in the case of the measures mentioned above on point 3 and 4, witness statements shall not include their real address or their identity data, these being recorded in a special register to which only criminal investigation bodies, the Judge for Rights and Liberties, the Preliminary Chamber Judge or the court have access, under confidentiality terms.
The Procedural Criminal Code also states that the prosecutor checks, at reasonable time intervals, whether the conditions having imposed the taking of protection measures continue to exist, and if not, they shall order, through a reasoned order, their termination.
It is also important to know that the above mentioned measures shall be maintained throughout the criminal proceedings if the state of danger did not cease.
Next, art. 127/NCPP provides that during the trial, the court may order the application of one or more of the following measures, once the status of the threatened witness was granted:
- surveillance and guard of the witness’ residence or providing of a temporary dwelling space;
- accompanying and ensuring protection to the witness or to their family members during trips;
- closed court sessions during the hearing of witnesses;
- hearing of witnesses without them being physically present in the court room, through audio-video transmission devices, with their voice and image distorted, when the other measures are not sufficient;
- protection of identity data, by issuing a pseudonym under which the witness shall testify.
Art. 128/NCPP indicates that the court orders the application of protection measures ex officio, upon request by the prosecutor, the witness, the parties, or the victim, and according to art. 126 paragraph (7), these measures may also be ordered by the Preliminary Chamber Judge, ex officio or upon notification by the prosecutor, if the state of danger occurred during preliminary chamber procedure.
Regarding the proposal filed by the prosecutor in relation to the application of these measures, art. 128/NCPP shows that this should include the following:
- name of the witnesses to be heard at the trial stage and in whose respect the ordering of a protection measure is sought;
- an actual reasoning of the seriousness of the danger and of such measure need.
However, when the request is filed by the witness, parties or the victim, the court may order that the prosecutor conducts verifications in respect of the soundness of the request, on an emergency basis, and this shall be ruled on in chambers, without the participation of the person who filed it.
The resolution through which the protection measure was reasoned shall be stored under confidentiality terms, and if the protection of the witness is also necessary after the court sentence remains final, provisions of the special law are applicable (Law no. 682/2002 regarding the protection of the witnesses).
Art. 130/NCPP refers to the protection of vulnerable witnesses. The status of vulnerable witness may thus be granted by the prosecutor or the court to a limited category of persons:
- witnesses who suffered a trauma as a result of the committed offense or of the subsequent behavior of a suspect or defendant;
- underage witness.
The same protection measures as in the case of the threatened witnesses may also be ordered for this category of persons, though distortion of the voice and image is not mandatory.
VIII. Witnesses’ oath and exemption from the oath.
The next step the witness shall take is that of taking an oath as the court, who will also explain its significance, shall indicate. (The witness shall be asked if they want to take a religious oath or make a solemn declaration.)
The text of the oath the witness shall take is the following “I swear to tell the truth and not to conceal anything of what I know. So help me God!”; while taking the oath, the witness will keep their right hand on a cross or on the Bible. It is also important to mention that the reference to divinity imposed by the religious oath shall be changed according to the religious belief of the witness. Of course, in the case of the witnesses who have a different religious belief, the rule of keeping their right hand on the cross or the Bible is not applicable.
Also, if the witness does not have a religious belief, they will take the following oath: “I swear on my honor and conscience to tell the truth and to not conceal anything of what I know.”, and if, for reasons regarding the conscious or confession they choose to give a solemn declaration, they shall state as follows: “I undertake to tell the truth and not to conceal anything of what I know.”
In the case of deaf and mute persons who know how to read and write, the oath shall be taken in writing and signed, deaf people will say the oath, and those who cannot write will take the oath through signs with the help of an interpreter.
Regarding the children who have not turned 14 years old yet and those with impaired judgment during the hearings, without being adjudicated of incapacity, the Procedural Civil Law shows that they can be heard, without taking an oath, but the court must draw their attention on telling the truth and shall take into consideration their special situation when appreciating their declarations.
IX. Hearing, re-hearing, and confrontation of the witnesses.
The law provides that the order of the hearing of the witnesses shall be decided by the President of the court, by also taking into consideration the requests of the parties. Furthermore, each witness shall be heard separately and without the presence of the other witnesses; the witness shall be allowed to declare everything they know in relation to the facts or factual circumstances for the proving of which they were proposed as witnesses, after which they can be asked questions, as the Procedural Criminal Code shows. The Procedural Civil Code adds that the witness will answer the President’s questions first, and then the questions asked by the party who proposed them, as well as those asked by the other party, with the approval of the President.
Among the questions that a witness CANNOT be asked are those related to their political, ideological, or religious options, or to other personal or family circumstances, except for the situations when such are strictly necessary for finding the truth in a case or for verifying their credibility.
It is important to mention that the witness is not allowed to read a previously thought and written answer, though they can use notes but only for specifying numbers or names (with the approval of the President of the Court only).
The Procedural Civil Law also indicates that, after being heard, the witness shall remain in the court room until the end of the examination, except for the case when the court decides otherwise.
Moreover, according to art. 322/NCPC, witnesses can be re-heard if the court considers it necessary, and, in relation to the witnesses whose declarations do not match, they can be confronted. Similarly, if the court considers that a question asked by a party cannot lead to the solution of the case, it is offensive, or tends to prove a fact the proving of which is not allowed by the law, they shall not approve it, and, on the request of the party will record in the court order both the question and the reason why it was not approved.
Another important thing to know is that art. 311/NCPC mentions that the witnesses can be replaced if and only if the initially proposed witness dies or disappears, or there are well grounded reasons. In this case, the list with the new witnesses shall be filled, under the sanction of lapse (meaning that the right cannot be exercised anymore), in five days since the approval. In addition, each party can go against the hearing of a witness whose name does not appear on the list or is not properly identified, as the same article provides. Finally, the Procedural Civil Law states that the incapacity to produce evidence for the non-execution of the duties provided by art. 262 shall be covered if they will show themselves in front of the court at the term decided for their hearing. In other words, the right to produce evidence can be exercised even if the party who was supposed to pay for the costs of the production of evidence did not do so, if the witnesses show up on the day when the court decided their hearing.
Art. 312/NCPC continues and shows that the witnesses who were not summoned can be heard even when the evidence was approved if they are brought by the party when the date was approved for producing the evidence. Additionally, if the party commits to introducing the witness on the hearing day, without being summoned, however due to imputable reasons they do not fulfill their duty, the court shall order the summoning of the witness on a new date, which means that if the party promises to bring the witness in front of the court and afterwards they do not follow through because of reasons for which they can be criticized, the court will order the summoning of the witness for a new term.
Art. 124/NCPP mentions the special cases of witness hearing, showing that when there is a witness up to 14 years of age, he or she shall be heard in the presence of one of the parents, of the guardian or of the person or representative of the institution to which the minor is entrusted for raising and education. However, if these persons cannot be present or have the capacity of suspect, defendant, victim, civil party, party with civil liability or witness in the case, or if there is a reasonable suspicion that these can influence the minor’s statement, their hearing shall take place in the presence of a representative of the guardianship authority or of a relative having full legal capacity, established by the judicial bodies. It is important to note that the underage witness must always be heard in the presence of an adult person (with full exercise capacity). Furthermore, the law seeks to protect the underage witness because it provides that the hearing should avoid any negative effect that may impact their psychological state. Likewise, the criminal law shows that if necessary, upon request or ex officio, criminal investigation bodies or the court may order that a psychologist be present during the hearing.
As far as the hearing of the protected witness is concerned, art. 129/NCPP provides that the hearing of the witness may be conducted through audio and video devices, without the physical presence of the witness at the venue where judicial bodies are. Similarly to the other cases, the main trial subjects, the parties, and their counsels may ask questions but the judicial bodies shall deny any questions that may lead to the witness’ identification, and the statement of a protected witness shall be recorded using audio and video technical devices and shall be fully transcribed in a written format. According to Procedural Criminal Law, during the criminal investigation, this statement shall be signed by the criminal investigation body or, as applicable, by the Judge for Rights and Liberties and by the prosecutor who attended the hearing of the witness, and shall be included in the case file. Additionally, the statement will also be signed by the witness and shall be stored in the file submitted to the prosecutor’s office, in a special place, under confidentiality terms. During the trial, on the other hand, the statement of the witness shall be signed by the judicial panel’s president judge and the medium on which the statement was recorded, in original, sealed with the seal of the prosecutors’ office or, as applicable, of the court before which the statement was given, shall be stored under confidentiality terms. Moreover, the medium containing the recordings made during the criminal investigation shall be submitted at the end of the criminal investigation to the court of competent jurisdiction, together with the case file, and shall be stored under the same confidentiality terms.
Regarding the confrontation of the witnesses, art. 131/NCPP provides that when it is found that there are contradictions between the statements of persons heard in the same case, one shall proceed to their confrontation, if this is necessary to clarify the case. The confronted persons shall thus be heard only regarding the facts and circumstances in respect of which their previous statements contradict with each other, and the court or the criminal investigation bodies may agree that the confronted persons ask each other questions. This time too, their questions and answers shall be recorded in a report.
X. The recording of the statement of the witness.
Art. 323/NCPC indicates that testimony shall be written by the court clerk according to the dictation of the president of the court or of the delegated judge and signed on each page and at its end by the judge, the court clerk, and the witness, after the latter learned its contents. The law allows the witness to refuse to sign, his refusal being recorded in a court order. Similarly, the witness’ inability to sign the statement shall be mentioned in the court order. Additions, changes, or corrections to the statement can also be made though these must be approved and signed by the judge, court clerk, and witness, otherwise they shall not be taken into consideration. To indicate the interdiction of making additions, the empty spaces from the statement shall be marked with lines. Additionally, after the end of the court session, the participants in the trial may receive, on request, a copy of the court clerk’s notes.
In criminal cases, the provisions of art. 123/NCPP shall be applicable. The witness’ testimony shall, thus, be recorded in writing, along with the questions asked during the hearing, by mentioning the person asking them and the time when the hearing started and when it ended. If the witness agrees with the content of the written statement, they shall sign it, and if they want to make additions, corrections or clarifications, these shall be indicated at the end of the statement, being followed by their signature. When they cannot or are unable to sign it, the judicial body shall mention this in the written statement according to art. 110/NCPP. Art. 123/NCPP further states, in its second paragraph, that during the criminal investigation, the hearing of the witness shall be recorded with audio or audio-video technical devices, if criminal investigation bodies deem this necessary or if the witness request this specifically and such recording is possible.
XI. False Testimony.
Art. 324/NCPC indicates that the witnesses’ testimony shall be appreciated by the court. This way, the court shall take into consideration the sincerity of the witnesses and of the circumstances under which they learned about the facts included in their testimony, and if there are any suspicions of false testimony or of bribery of the witness, the court shall write a report and notify the competent criminal investigation body.
According to art. 273/NCP, false testimony is a crime which consists in the act of a witness who, in a criminal, civil or other proceeding in which witnesses are heard, gives false statements, or does not tell everything they know regarding the essential acts or circumstances in relation to which they are heard, and it shall be punishable by no less than 6 months and no more than 3 years of imprisonment or by a fine. Despite all this, if the witness who committed this crime withdraws their testimony, in criminal cases, before the defendant’s detention or arrest, or before the commencement of the criminal action or in other cases before a decision or another solution is given, they shall not be punishable.
*Note: NCPC refers to the Procedural Civil Law, NCPP refers to the Procedural Criminal Law, while NCP means Criminal Law.
Writer: Maria Tirică – Necuvinte Association volunteer