MARCO HISTÓRICO DE LA IGP “LECHAZO DE CASTILLA Y LEÓN”

157 Section 207

(1) After the hearing of the indictment and the statement of the aggrieved person, the presiding judge shall question the defendant about the content of the indictment and, if a claim for compensation of damage or non-material harm for or the surrender of unjust enrichment was asserted, also about this claim.

(2) The protocol on a previous testimony of the defendant shall be read only if the hearing is held in the absence of the defendant, if the defendant refuses to testify, or in case substantial discrepancies are revealed between his earlier testimony and information provided during the trial, and if the questioning was performed after notification of the allegations in a way corresponding to the provisions of this Code. The defendant must be notified of such discrepancies and asked about their cause.

Section 208

If there are several defendants, the presiding judge may take measures to question the defendant in the absence of the co-defendants. However, the defendant must always be advised in the course of the evidentiary procedure on the content of the testimonies of the co- defendants, who were questioned in his absence.

Production of Further Evidence Section 209

(1) The presiding judge shall heed that a witness who has not yet been questioned is not present during the questioning of the defendant and other witnesses. If there is a concern that a witness shall not testify truthfully in the presence of the defendant, or if it is a witness or a person close to him is in danger of bodily harm, death or other serious threat, the presiding judge shall take appropriate measures to secure the safety and anonymity of the witness, or shall expel the defendant from the courtroom during the interrogation of such a witness. However, upon his return to the courtroom, the defendant must be informed about the content of the witness testimony, he may make comments on it, and he may ask the witness questions via the presiding judge without having met with the witness. In the case of a witness, whose identity is to be kept confidential (Section 55 (2)), the presiding judge shall take measures to make it impossible to determine the true identity of the witness.

(2) If a witness, whose identity is kept confidential (Section 55 (2)), is questioned during the trial, the court shall take all the necessary steps to verify his credibility, even without a petition.

Section 210

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If an expert has not yet submitted a written opinion on the matter, or if he deviates from it or supplements it, the presiding judge may order him to dictate the opinion into the protocol, or to write it on his own.

Section 211

(1) In the trial, a protocol on a witness testimony may be read instead of questioning a witness, if the court does not consider a personal interview of the witness necessary and the public prosecutor and the defendant give their consent. If a defendant, who was duly summoned to the trial, fails to appear without an excuse, or if he leaves the courtroom without a serious reason, the consent of the defendant to reading of such a protocol on a witness testimony is not necessary, and the consent of the public prosecutor shall be sufficient. The accused person must be notified thereof in the writ of summons.

(2) The protocol on the testimony of a co-defendant or witness shall also be read, if the questioning was performed in a manner corresponding to the provisions of this Code, and

a) such a person has died or gone missing, cannot be reached due to a long term stay abroad, or suffers from a permanent illness, which makes his questioning impossible either permanently or for the foreseeable future, or

b) in case an urgent or non-repeatable action performed pursuant to Section 158a is concerned.

(3) The protocol on an earlier testimony of a witness shall also be read if the questioning was conducted in a manner corresponding to the provisions of this Code and the witness has refused to testify without an authorisation, or if he diverts from his previous testimony in substantial items, and

a) the defence counsel or the accused had the opportunity to take part in the earlier questioning and to ask the questioned person questions,

b) if it was found that such a person was subject to violence, intimidation, bribery, or promises of other benefits and thus compelled not to testify or to testify falsely, or c) if the content of the testimony was affected during the course of the questioning in the

trial, especially due to the conduct of the defendant or due to the presence of the public.

(4) The protocol on the testimony of a witness who exercised his right to refuse to testify pursuant to Section 100, during the trial, may be read only if the witness was duly instructed on their right to refuse to testify before the questioning and he explicitly stated that he waives this right, provided that the questioning was conducted in a manner corresponding to the provisions of this Code, and the accused or the defence counsel had the opportunity to attend this questioning.

(5) A protocol on the testimony of an expert or his written opinion may be read instead of his questioning, if the expert was instructed pursuant to Section 106 before submitting his opinion, provided that there are no doubts about the correctness and completeness of the

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expert opinion, and the public prosecutor and the defendant give their consent. The provisions of sub-section (1), second and third sentence, shall apply accordingly.

(6) Official records on explanations of persons and on conducting other actions (Section 158 (3) and (5)) may be read in the trial with a consent of the public prosecutor and the defendant. (7) Provisions of sub-sections (1) to (5) on reading protocols shall be applied accordingly also to playing audio and visual records made on a questioning performed by the means of a video-conference device.

Section 212

(1) If a witness or co-defendant diverts significantly from his earlier testimony and unless a case referred to in Section 211 (3) or a testimony made as an urgent or non-repeatable task under Section 158a is concerned, the protocol on his questioning in the pre-trial proceedings, at which the defence counsel was not given the opportunity to be present, or its relevant parts, may only be presented by either party or by the presiding judge to explain inconsistencies in their testimonies, so that the court could assess the credibility and truthfulness of their testimonies made at the trial, within the free evaluation of evidence.

(2) The presentation of an earlier testimony pursuant to sub-section (1) consists in the reproduction of those parts of the transcript on the previous questioning, to which the questioned person is to comment on and explain discrepancies between his testimonies. The presented protocol on the testimony cannot be the basis for the verdict of guilt of the accused, not event in conjunction with other evidence produced in this case.

Section 213

(1) The opinions, reports of the State and other authorities and other documents and other material evidence shall provided to the parties for inspection in the course of the trial and, if necessary, to the witnesses and experts as well.

(2) If any party proposes reading of the documents referred to in sub-section (1), the court is obliged to read such a document during the trial.

Section 214

The defendant must be asked after production of each piece of evidence, whether he wishes to make a comment, and his opinions shall be recorded in the protocol.

Section 215 Participation of Parties in Evidentiary Procedure

(1) The public prosecutor, the defendant, his defence counsel and statutory representative, the party concerned, the aggrieved person and their agents may, with the consent of the presiding

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judge, ask the interviewed persons questions, in general when the presiding judge has finished his questions and if the members of the court panel have no more questions.

(2) The public prosecutor, the defendant and his defence counsel may request to be allowed to produce a piece of evidence, particularly by questioning of a witness or an expert. The presiding judge shall grant their requests, especially if it concerns evidence produced to their petition or evidence obtained and presented by them; he is not obliged to meet their requests if it concerns questioning of the accused person, questioning of a witness under fifteen years of age, an ill or injured witness, or if the production of the piece of evidence by one of the abovementioned persons would be inappropriate due to other important reasons. If the questioning of the same witness or expert is proposed by the public prosecutor as well as by the defendant or his defence counsel, and both parties request the questioning, the presiding judge shall decide, after hearing both parties, which one of them shall perform the questioning. The presiding judge may interrupt the questioning conducted by any of the stated parties, only if the questioning is not conducted in accordance with the law, the questioned person is being put under pressure by the interrogator or the questioning is conducted in another improper way, or if the presiding judge or a member of the court panel deems it necessary to ask the questioned person a question which cannot be delayed until after the questioning or its part is concluded.

(3) After conclusion of the questioning or its part pursuant to sub-section (2), the other party has the right to ask the questioned person questions. The last sentence of sub-section (2) shall apply accordingly.

(4) After the production of all evidence, the presiding judge shall ascertain whether the parties have any requests for supplementation of evidence.

SUBDIVISION FIVE