EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
Statements of the accused person or the defendant
Art. 69 - The statements given by the accused person or defendant during the criminal trial may lead to the truth only to the extent to which they are corroborated with facts and circumstances resulted from all the evidence in the case.
Art. 70 - Before being heard, the accused person or defendant is asked about his/her name, surname, nickname, date and place of birth, name and surname of parents, citizenship, education, military service, working place, occupation, address, criminal antecedents and other data necessary to determine his/her personal situation.
The accused person or defendant is then informed about the deed that makes the object of the case, the right to have a defender, as well as the right not to make any statement, at the same time being informed that everything he declares may be used against him/her as well. If the accused person or defendant makes a statement, he/she is asked to declare everything he/she knows related to the deed and to the accusation in connection to this.
If the accused person or defendant agrees to make a statement, the criminal investigation body, before hearing him/her, asks him/her to write personally a statement related to the guilt he is made responsible of.
Art. 71 - Every accused person or defendant is heard separately.
During the criminal investigation, if there are several accused persons or defendants, each of them is heard without the others attending.
The accused person or defendant is first left to declare everything he/she knows in relation with the case.
The hearing of the accused person or defendant cannot begin by reading or reminding the statements that the latter has previously given in relation with the case.
The accused person or defendant cannot present or read a previously written statement, but he/ she may use notes for details that are difficult to remember.
Art. 72 - After the accused person or defendant has given the statement, he/she may be asked questions in relation with the deed that constitutes the object of the case and with his/her guilt. He/she is also asked about the evidence that he/she considers fit to propose.
Art. 73 - The statements of the accused person or defendant are written down. Each declaration will also include a mention of the hour of the beginning and ending of the hearing of the accused person or defendant. The written statement is read to the accused person or defendant and, if he/she asks, he/she is handed the statement to read it. When he/she agrees with its content, signs on every page and at the end.
When the accused person or defendant cannot or refuses to sign the statement, this will be mentioned in the written statement.
The written statement is also signed by the criminal investigation body that has heard the accused person or defendant or by the president of the panel and by the clerk, as well as by the interpreter, when the declaration has been given through an interpreter.
If the accused person or defendant changes his/her mind about one of his statements or wants to make adding, corrections or specifications, these are written down and signed under the conditions shown in the present article.
Art. 74 - Whenever the accused person or defendant finds himself/ herself in the impossibility to come for a hearing, the criminal investigation body or the court hear him at the place where he/she is, unless it is provided otherwise by the law.
EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
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.
EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
Written means of evidence
Art. 89 - Documents may serve as means of evidence if they contain reference of deeds or circumstances that may contribute to revealing the truth.
Art. 89(1) – The forms in which any statement is to be recorded, at the stage of criminal prosecution, shall be recorded and numbered beforehand, as forms with a special status, and after filling in, will be introduced in the case file.
The official report as means of evidence
Art. 90 - The official reports drawn up by the criminal investigation body or by the court are means of evidence.
The official reports and acknowledgment papers drawn up by other bodies are also means of evidence, if the law stipulates so.
The contents and form of the official report
Art. 91 - The official report must include :
a) the date and the place where it is drawn up ;
b) the name, surname and position of the person who draws it up ;
c) the names, surnames, occupations and addresses of the assistant witnesses, when they exist ;
d) a detailed description of the things found out, as well as of the measures taken ;
e) the names, surnames occupations and addresses of the persons referred to in the official report, their objections and explanations ;
f) the specifications stipulated by the law for special cases.
The official report must be signed on every page and at the end by the person who draws it up, as well as by the persons mentioned at letters c) and e). If one of these persons cannot or refuses to sign, this will be mentioned in the official report.
EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
Material probative evidence
Objects as means of evidence
Art. 94 - The objects that contain or bear a trace of the deed committed, as well as any other objects that may serve to reveal the truth may serve as material means of evidence.
Art. 95 - The objects that were used or destined to be used for committing an offence, as well as objects that are the result of an offence are also material means of evidence.
EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
Confiscation of objects and writings.
Performance of searches
Confiscation of objects and writings
Art. 96 - The criminal investigation body or the court must take away the objects or writings that may serve as means of evidence in the criminal trial.
Delivery of objects and writings
Art. 97 - Any natural person or legal person who possesses an object or a piece of writing that may serve as means of evidence must appear and hand it, and take a proof for this, to the criminal investigation body or to the court, at their request.
If the criminal investigation body or the court considers that even a copy of a piece of writing may serve as a means of evidence, it keeps only the copy.
If the object or the writing has a secret or confidential character, the presentation or the delivery is done in circumstances that would ensure keeping the secret or confidentiality.
Retaining and handing over of correspondence and objects
Art. 98 - The court, with the prosecutor's proposal, during the criminal investigation or ex officio, may order that any post or transport office retain and deliver the letters, telegrams or any other correspondence, or the objects sent by the accused person or defendant, or addressed to him/her, either directly or indirectly.
The measure provided at par. 1 is disposed if the conditions shown in art. 91(1) par. 1 are met and according to the procedure provided there.
The retaining and handing over of letters, telegrams or any other correspondence or objects to which par. 1 makes reference may be disposed, in writing, in urgent and fully justified cases , by the prosecutor as well, who is obliged to immediately inform the court about this.
Retained correspondence and objects that have nothing to do with the case are returned to the addressee.
Confiscation by force of objects or writings
Art. 99 – If the object or writing required is not delivered voluntarily, the criminal investigation body or the court order confiscation by force.
During the trial, the order of confiscation by force of objects or writings is communicated to the prosecutor, who takes enforcement measures through the criminal investigation body.
Art. 100 - When the person asked to deliver one of the objects or writings mentioned in art. 98 denies their existence or possession, as well as whenever the search is necessary in order to discover and gather evidence, a search may be ordered.
The search may be domiciliary or corporal.
Domiciliary search may be disposed only by the judge, through motivated closing, during criminal prosecution, upon prosecutor’s request, or during trial.
Domiciliary search is disposed during criminal prosecution in the council room, without summoning of the parties. The participation of the prosecutor is mandatory.
Corporal search may be disposed, according to the case, by the criminal investigation body, by the prosecutor or by the judge.
Domiciliary search may not be disposed before the beginning of the criminal investigation.
Domiciliary search during criminal investigation
Art. 101 - The search ordered during criminal investigation, according to art. 100, is performed by the prosecutor or by the criminal investigation body, accompanied, according to the case, by operational workers.
Domiciliary search during trial
Art. 102 - The court may perform a search on the occasion of a local investigation.
In the other cases, the court's order to perform a search is communicated to the prosecutor, in order to proceed with the search.
The time for making the search
Art. 103 - Confiscation of objects and writings, as well as domiciliary search may be performed between 6 a.m. - 8 p.m., and at other times only in case of flagrante delicto, or when the search is to be performed in a public place. The search begun between 6 a.m. - 8 p.m. may continue during the night.
The search procedure
Art. 104 - The judicial body that will perform the search must prove its identity and, in the cases stipulated by the law, present the authorization given by the prosecutor.
The taking away of objects and writings, as well as domiciliary search are performed in the presence of the person from whom the objects or the writings are taken away, or whose place is searched and, when the person is absent, in the presence of a representative, of a member of the family or of a neighbour, having exertion ability.
These operations are performed by the criminal investigation body in the presence of assistant witnesses.
When the person whose place is searched is held or arrested, he/she will be brought to the search. In case he/she cannot be brought, the taking away of objects and writings, as well as domiciliary search, are performed in the presence of a representative or a member of the family, and, in their absence, in the presence of a neighbour having exertion ability.
Performing domiciliary search
Art. 105 - The judicial body that performs the search has the right to open the rooms or other means of enclosing where the objects or the writings wanted may be found, if the person entitled to open them refuses to do so. The judicial body must limit itself to confiscation of objects and writings connected to the deed committed ; objects and writings whose circulation and possession are forbidden are always taken away.
The judicial body must take measures so that facts and circumstances in the personal life of the person whose place is searched which are not connected with the case are not made public.
Performing corporal search
Art. 106 - Corporal search is performed by the judicial body that ordered it, following the provisions of art. 104 paragraph 1, or by the person appointed by this body.
Corporal search is performed only by a person of the same gender with the person being searched.
Identifying and keeping objects
Art. 107 - Objects and writings are shown to the person from whom they are taken away and to those who assist, in order to be recognized and marked by them in order not to be changed, after which they are labelled and sealed.
The objects that cannot be marked, labelled or sealed are wrapped up or closed, together if possible, after which they are sealed.
The objects that cannot be taken away are attached and left to be kept, either by the person who has them or by a custodian.
Tests for analysis are taken at least twice and are sealed. One test is left with the person from whom they are taken or, in his/her absence, with one of the persons mentioned in art. 108, final paragraph.
Official report for search and confiscation of objects and writings
Art. 108 - An official report is drawn up mentioning the performance of the search and confiscation of objects and writings.
The official report must include, besides the specifications stipulated in art. 91, the following: place, date and circumstances in which the writings and the objects have been found and taken away, a list and detailed description of these, in order to be recognized.
The objects that have not been taken away, as well as those left for keeping are also mentioned in the official report.
A copy of the official report is left with the person to whom the search has been performed or from whom the objects or writings have been taken away, with the representative, a member of the family, the persons he lives with or a neighbour and, if such is the case, with the custodian.
Measures regarding confiscated objects
Art. 109 - The criminal investigation body or the court order that the objects or writings taken away, that represent means of evidence are, according to case, attached to the record or kept in another way.
The taken away objects and writings that are not attached to the file may be photographed. In this case, the photos are stamped and attached to the record.
Until the case is finally resolved, material means of evidence are kept by the criminal investigation body or by the court where the record is.
Objects and writings delivered or taken away during the search which are not connected with the case are returned to the person to whom they belong. Confiscated objects are not returned.
The objects that serve as means of evidence, if they are not subject to confiscation, may be returned to the person to whom they belong, even before the trial is finally resolved, unless the return might impede the revealing of the truth. The criminal investigation body or the court informs the person to whom the objects were returned that he/she must keep them until the case is finally resolved.
Conservation or use of confiscated objects
Art. 110 - The objects that serve as means of evidence, if they are among those mentioned in art. 165 paragraph 2 and if they are not to be returned are kept or used according to the provisions of that article.
Special provisions regarding public units and other legal persons
Art. 111 - The provisions in the present section are also enforced accordingly when the procedural acts are performed at a unit among those referred to in art. 145 in the Penal code, provisions completed as follows :
a) the judicial body proves its identity and, according to the case, shows to the representative of the public unit or to another legal person the authorization given ;
b) the confiscation of objects and writings, as well as the search, are performed in the presence of the representative of the unit ;
c) when the presence of assistant witnesses is obligatory, they may be part of the unit staff ;
d) a copy of the official report is left with the representative of the unit.
EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
Rogatory commission and delegation
Conditions for disposing the rogatory commission
Art. 132 - When a criminal investigation body or the court cannot hear a witness, perform a field investigation, take away objects or perform any other procedural act, they may address another criminal investigation body or another court, who have the possibility to perform them.
Initiating the criminal action, taking preventive measures, approving the evidence gathering procedure, as well as ordering the other procedural acts or measures are not the object of the rogatory commission.
The rogatory commission may only address a body or a court that are equal in rank.
The content of the rogatory commission
Art. 133 - The cancellation or closing by which the rogatory commission was instituted must include all clarifications on the performance of the act that makes its object, and in case a person is to be heard, the questions that he/she will be asked are also included.
The criminal investigation body or the court that form the rogatory commission may ask other questions too, if their necessity results during the hearing.
The rights of the parties in case of rogatory commission
Art. 134 - When the rogatory commission was ordered by the court, the parties may ask questions that will be communicated to the court which is to form the rogatory commission.
At the same time, any of the parties may ask to be summoned when the rogatory commission is formed.
When the defendant is under arrest, the court that will form the rogatory commission appoints an ex officio defender who will represent the defendant.
Art. 135 - The criminal investigation body or the court may order, under the conditions mentioned in art.132, the performance of a procedural act by delegation as well. Only a hierarchically inferior body or court may be delegated.
The dispositions regarding the rogatory commission are enforced accordingly in the case of delegation.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.