PART TWO COURSE OF PROCEDURE
Chapter XVIII INVESTIGATING ACTS
5. Hearing of witnesses
(1) As witnesses are summoned the persons who are likely to make statements for the crime and criminal and for other important circumstances.
(2) The damaged, the damaged as a plaintiff and the private prosecutor may be heard as witnesses.
(3) Anyone summoned as a witness is obliged to answer the court summons, and if it is not proscribed differently with this Code, the person is obliged to act as a witness.
The following persons cannot be heard as witnesses:
1) the person who with the statement would violate his duty of keeping an official or military secret until his competent body releases him from his duty, and
2) the counsel of the accused for what he has been entrusted with by the accused as his counsel, unless the accused himself requires it.
(1) The following persons are released from their duty to be witnesses:
1) marital and illegitimate spouse of the accused;
2) blood relatives of the accused of first line, relatives of further line to the third degree as well as in- laws to the second degree;
3) an adopted child or parent who has adopted of the accused;
4) religious confessor to whom the accused or other persons has confessed;
5) a lawyer, physician, social worker, psychologist or other person for facts which they learned executing their duty in reference of their duty to keep it as a classified secret while executing their professional duties.
(2) The court which conducts the procedure is obliged to warn the persons that they need not be witnesses, i.e. persons mentioned in paragraph 1 of this Article before their hearing or as soon as it learns about their relationship to the accused. The warning and the answer are included in the minutes.
(3) Considering his age and mental development the minor who is not capable to understand the meaning of his right that he need not be a witness cannot be heard as a witness.
(4) The person who is allowed not to be a witness to one of the accused is released from his duty of witnessing to the other accused persons if his statement according to the nature of the circumstances cannot be limited only to the other accused.
If a person was heard as a witness but who could not have been heard as a witness (Article 218) or the person who need not be a witness (Article 219) and he was not warned or has not explicitly denied his right or if the warning and the denial are not notified in the minutes, or if a minor was heard who could have not understood the meaning of his right that he need not witness or if the statement of the witness is extorted by force, by threat or by other similar forbidden means (Article 251, paragraph 2), a court decision cannot be based upon the statements of the above mentioned witnesses .
The witness is not obliged to answer particular questions if he is likely to expose himself or his close relatives (Article 219, paragraph 1, items 1 to 3) to severe embarrassment, significant material damage or criminal prosecution .
(1) The summoning of the witness is performed by a delivery of a written court summons in which the following will be notified: the name and occupation of the summoned, time and place of arrival, criminal case upon which he is summoned, notification that he is summoned as a witness and warning on the consequences of his unjustified absence (Article 229).
(2) The summoning for witnessing of a minor who is not sixteen yet is performed by his parents i.e. authorised representatives, unless it is impossible due to the necessity to act urgently or due to other circumstances.
(3) The witnesses who due to their old age, illness or severe physical handicaps cannot answer the court summons may be examined in their home.
(1) Witnesses are heard separately and without the presence of other witnesses. They are obliged to answer orally.
(2) The witness will be previously warned that he is obliged to speak the truth and must not conceal anything and hereby he will be warned that giving false statements is crime. The witness will be warned that he is not obliged to answer the questions encompassed in Article 221 of this Code and the warning will be included in the minutes.
(3) Afterwards the witness will be asked about his name, father's name, occupation, residence, place of birth, age and his relationship to the accused and damaged. The witness will be warned that he is obliged to inform the court of his new address or residence.
(4) During examination of a minor, especially when damaged with a crime, it will be acted carefully so that the hearing does not inflict the psychical condition of the minor. If it is necessary, the hearing of the minor will be performed by an assistance of a pedagogue or another specialised person.
(5) If the court deems it necessary, in order to protect a juvenile individual, a victim of human trafficking, violence or sexual abuse, the examination shall be conducted in the absence of the parties, in a special room, where the child is going to be kept, whilst they will be able to ask questions through the investigative judge, pedagogue, psychologist or another competent person who is present in the same room, together with the victim. The court shall decide whether there will be an audio or video recording of the examination, which can be used later on during the proceedings as evidence, or it will be observed live, with the assistance of appropriate technical means of communication (video conference or another type of a video link or connection) .
(1) If there is any probability that by giving a statement or by answering a certain question, the witness, collaborator of justice or the victim i.e. the person who suffered some damage, would expose himself or herself or another closely related person to a serious threat to their life, health or physical integrity (endangered witness), the endangered witness may withhold his statement or the presentation of information as referred to in Article 223, paragraph (3) of this Law, until the necessary conditions for his or hers protection are provided for.
(2) The protection of the endangered witness, consists of a special method of examination and participation in the procedure regulated by this Law (Chapter XIX-a) and by application
of protective measures outside the procedure, regulated by another law.
(3) If the investigative judge believes that the threat apprehension, as referred to in paragraph (1) of this Article is well founded, he or she shall terminate the examination and will undertake urgent actions, pursuant to the provisions for protection of witnesses, collaborators of justice or victims, regulated by this Law.
(4) If the investigative judge believes that the request as referred to in paragraph (1) of this Article is unfounded, he or she shall act pursuant to Article 229 of this Law. (1)
(1) After the general questions, the witness is called to state everything familiar to him on the case, after which he will be asked questions in order the statements to be checked, supplemented and clarified. During the hearing of the witness it is not allowed to be used deceit, nor asking questions in which the answer is included.
(2) The witness will be always asked how he is familiar with the issues he is witnessing of.
(3) Witnesses may be confronted if their statements do not agree in respect of significant facts. The confronted witnesses will be examined separately for each circumstance for which their statement mutually disagree and their answer will be inserted in the minutes. Only two witnesses can be confronted at the same time.
(4) The damaged heard as a witness will be asked whether he chooses to realise his lawful property request in the criminal procedure.
If it is necessary to be certified whether the witness is familiar with the person or objects, first he will be asked to describe the signs in which he i.e. they are different from the other persons or objects, then he will be shown for recognition the suspect together with other persons not familiar to the witness i.e. the object, if possible together with objects of the same kind.
If the hearing of the witness is performed by an assistance of an interpreter or if he is deaf or dumb, his hearing is performed in the manner included in Article 216 of this Code.
It may be asked from the witness to take an oath. Before the trial the witness may take an oath only if there is a possibility that due to an illness or for other reasons he could not attend the trial. The reason for the oath is included in the minutes. The oath is taken in the manner proscribed in Article 317 of this Code.
The following persons must not take an oath:
1) who are not adults at the moment of the hearing; and
2) for whom it has been proved or there is a justified suspicion that they committed crime or participated in the crime for which they are heard.
(1) If the witness who was summoned does not come and does not justify his absence or without an approval or justified reason leaves the place where he is to be heard, it may be ordered the witness to be apprehended forcefully and he may be punished with a fine
penalty according to Article 74, paragraph 1 of this Code.
(2) If the witness comes and after he has been warned of the consequences without a lawful reason does not choose to witness, he may be punished with a fine penalty under Article 74, paragraph 1 of this Code and if he refuses to witness after the fine, will be punished with a fine under Article paragraph (3) of this law.
(3) On the appeal against the decision with which fine penalty is pronounced, the Chamber decides (Article 22, paragraph 6). The appeal against the decision does not keep from the execution of the decision.
(4) If an Army and police officers refuse to witness, their competent headquarters will be informed for this .
6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: