Formulación de las Estrategias

Article 158

(1) A person shall be summoned as a witness if there is a likelihood that he or she may give information about the criminal offence, the perpetrator and important circumstances relevant for the criminal proceedings.

(2) The injured party, the subsidiary prosecutor and the private prosecutor may be examined as witnesses.

(3) Any person summoned as a witness has a duty to respond to the summons and, unless otherwise provided for by the present Code, to testify.

1. PRIVILEGED WITNESSES

Article 159

The following persons may not be examined as witnesses:

1) A person who by giving testimony would violate the obligation to keep an official or military secret, until the competent body releases him or her from that obligation;

2) A defence counsel, on matters confided to him or her by the defendant, unless the defendant himself or herself so requests; and

Article 160

(1) The following persons are exempted from the duty to testify:

1) The spouse or extra-marital partner of the defendant, unless proceedings are conducted for a criminal offence punishable by imprisonment of at least five years and he or she is an injured party of that criminal offence;

2) A person who is related to the defendant by blood in a direct line or in a collateral line to the third degree or by marriage to the second degree, unless proceedings are conducted for a criminal offence punishable by imprisonment of at least ten years or he or she is a witness of a criminal offence against a child who is cohabiting with or is related to him or her or to the defendant;

3) The adoptive parent or adopted child of the defendant, unless proceedings are conducted for a criminal offence punishable by at least ten years or he or she is a witness of a criminal offence committed against a child who is cohabiting with or is related to him or her or the defendant;

4) A religious confessor on matters confessed to him or her by the defendant or by another person;

5) A lawyer, a Victim Advocate, medical doctor, social worker, psychologist or another person, on what he or she came to know in the exercise of his or her profession, if bound by duty to keep secret what he or she learns of in the exercise of his or her profession; and

6) A journalist or an editor who works in the media or one of his or her assistants in accordance with Article 29 of the Provisional Criminal Code.

(2) A person referred to in paragraph 1 subparagraph 4, 5 or 6 of the present article cannot refuse to testify when there is a legal basis for releasing him or her from the duty of maintaining confidentiality.

(3) The competent authority conducting the proceedings shall be bound to instruct the persons referred to in paragraph 1 of the present article, before each examination or upon establishing their relation to the defendant, of their right not to testify. The instruction and the reply thereto shall be entered in the record.

(4) A child who, in view of his or her age and stage of intellectual development, cannot understand the meaning of the right to refuse to testify may not be examined as a witness, unless the court finds that he or she is capable of understanding that he or she is undergoing the examination in order to tell the truth.

(5) A witness entitled to refuse to testify against one of the defendants shall be exempt from the duty to testify against other defendants if his or her testimony cannot, in view of the nature of the matter, be confined solely to the other defendants.

Article 161

A statement of a person who has been examined as a witness shall be inadmissible if: 1) The person may not be examined as a witness (Article 159 of the present Code); 2) The person is exempted from the duty to testify (Article 160 of the present Code),

but he or she has not been instructed about that right or has not explicitly waived that right, or the instruction and the waiver were not entered in the record;

3) The person is a child who could not understand the meaning of his or her right to refuse to testify: or

4) The testimony was extorted by force, threat or a similar prohibited means (Article 155 of the present Code).

Article 162

A witness is not obliged to answer individual questions by which he or she would be likely to expose him or herself or a close relative (Article 160 paragraph 1 subparagraphs 1 through 3 of the present Code) to serious disgrace, considerable material damage or criminal prosecution. The court shall notify the witness of this right.

2. CONDUCT OF AN EXAMINATION OF WITNESSES

Article 163

(1) A witness shall be summoned by serving a written summons which shall indicate: the name and surname and occupation of the witness, when and where he or she is to appear, the criminal case in connection with which he or she is summoned, an indication that he or she is summoned as a witness and the consequences of unjustifiable non-compliance with the summons.

(2) A person under the age of sixteen years shall be summoned as a witness through his or her parents or legal representative, except where that is not possible for reasons of urgency or other circumstances.

(3) A witness who by reason of old age, illness or serious disability is unable to comply with the summons may be examined out of court.

Article 164

(1) A witness shall be examined separately and without the presence of other witnesses. A witness shall answer questions orally.

(2) A witness shall first be told that it is his or her duty to speak the truth and that he or she may not withhold anything, whereupon he or she shall be warned that false testimony

constitutes a criminal offence. A witness shall also be instructed that he or she need not answer any of the questions referred to in Article 162 of the present Code and the instruction shall be entered in the record.

(3) Subsequently, the witness shall be asked to state his or her first name and surname, the name of his or her father and mother, personal identity number, occupation, place of current residence, place of birth, age and 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 current residence.

(4) The provision in paragraph 3 of the present article shall not apply when it conflicts with measures for the protection of injured parties and witnesses as provided for by the present Code.

(5) Police officers shall be informed by the judge of their right to give the address of their police station rather than the address of their current residence.

(6) A person who has not reached the age of eighteen years, especially if that person has suffered damage from the criminal offence, shall be examined considerately to avoid producing a harmful effect on his or her state of mind. If necessary, a child psychologist or child counsellor or some other expert should be called to assist in the examination of such person.

Article 165

(1) The public prosecutor shall first examine witnesses named by the public prosecutor; the defence shall first examine those named by the defence. Each party shall be given an opportunity to examine the witness who has been examined by the other party.

(2) After this examination the presiding judge and members of the panel can ask the witnesses such questions, as they deem necessary for further clarification of the case. If a witness was called on a motion of the court, the presiding judge shall put questions to such witness first.

(3) Questions to the witness can be posed directly by the injured party, his or her legal representative or authorized representative, a co-defendant, or an expert witness only with the permission of the court.

(4) Only the presiding judge shall conduct the examination of witnesses under sixteen years of age. The public prosecutor or the defence may request the presiding judge to ask such witnesses further questions. The presiding judge may permit these persons to put questions to a witness directly if this is not expected to prejudice the well-being of such witness.

(5) Article 234 of the present Code shall apply mutatis mutandis to the examination of witnesses.

(6) Witnesses may be confronted if they give testimonies which substantially conflict with one another. Such witnesses shall be examined separately about each circumstance on

which their testimonies conflict and their answers shall be entered in the record. Only two witnesses may be confronted at a time.

(7) The injured party examined as a witness shall be asked whether he or she intends to pursue a property claim in criminal proceedings.

Article 166

If a witness is examined through an interpreter, or if a witness is deaf or mute, he or she shall be examined as provided for in Article 232 of the present Code.

Article 167

(1) If a witness who has been duly summoned fails to appear and does not justify his or her failure to appear or if he or she leaves the place where he or she should be examined without permission or a valid reason, such witness may be compelled to appear and may be fined up to 250 EUR.

(2) If a witness appears when summoned but after being warned of the consequences refuses to give testimony without legal justification, he or she may be fined up to 250 EUR. If even then the witness refuses to testify, he or she may be imprisoned. This imprisonment shall last for as long as the witness refuses to testify or until his or her testimony becomes unnecessary, or until criminal proceedings terminate, but shall not exceed one month.

(3) An appeal against a ruling imposing a punishment of a fine or imprisonment shall always be decided by the three-judge panel. An appeal against the ruling on imprisonment shall not stay the execution of the ruling. The punishment under paragraphs 1 and 2 of the present article shall be imposed by a judge.

(4) Members of armed forces and the police may not be imprisoned but their refusal to testify shall be reported to their respective commands.