Examination of witnesses - national proceedings

Ukraine

Code of Criminal Procedure of Ukraine 2012 (2015)

Section I

GENERAL PROVISIONS

Chapter 5

EVIDENCE

Article 68. Testimonies of witnesses

Every person who is known as being aware of circumstances related to the case may be summoned to appear as witness.
A witness may be questioned about circumstances to be established in a given case, inclusive of facts which characterize the personality of the accused or suspect and his/her relationship therewith.
Information reported by a witness from unknown source may not be evidence. If testimonies of a witness are based on communications by other individuals, such individuals should be questioned either.
(Article 68 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84).


Article 69. Persons who may not be examined as witnesses and persons who have the right to waive testifying as witnesses

The following persons may not be examined as witnesses:
1) lawyers and other specialists in law who are legally entitled to provide legal assistance in person or upon power of attorney of a legal person; notaries, doctors, psychologists, clergymen – about what came to their knowledge in the discharge of professional activities unless the person who entrusted them such information has released them from the duty to keep professional secrets;
2) defense counsel of the suspect, accused, defendant, representative of the victim, plaintiff, civil defendant – about circumstances which came to their knowledge during the provision of legal assistance to their clients;
3) persons who, in accordance with forensic psychiatric or forensic medical examination, may not correctly perceive facts which have probative value and give testimonies about the same because of their physical or mental disabilities;
4) witness who, under Article 52-3 of the present Code, testifies under a pseudonym – about his/ her real details;
5) a person in possession of information o real details on the witness who, under Article 52-3 of the present Code, testifies under a pseudonym – about such information.

The following persons may waive testifying as witnesses:
1) family member, close relatives, persons adopted by, and adopters of, the suspect, accused, defendant;
2) a person who, with his/her testimonies, would incriminated himself/herself, his/her family members, close relatives, the adopted person, adopter in having committed a crime. Without their consent, may not be examined as witnesses the persons who enjoy diplomatic immunities, as well as members of diplomatic missions – without consent of the diplomatic representative.

The inquirer, investigator, prosecutor, and court, before examining persons referred to in the first and second paragraphs of the present Article, are required to advice them of the right to waive testifying, which is entered into the record of examination or court records. (Article 69 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, by Law No 3780-XII (3780-12) of 23.12.93, as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001 ).


Article 69-1. Witness’s rights

A witness has the following rights:
1) testify in mother language or any other language he/she speaks fluently and take advantage of a translator;
2) disqualify translator;
3) know in connection with what and in which case he/she is examined;
4) enter his/her testimonies in the record of examination with his/her own hand; 4-1) to chose his/her own free will defense counsel during the examination or other investigative actions conducted with his/her participation according to this Code and other legal assistance under the procedure prescribed by law, and to refuse from defense counsel invited by him/her.
Defense counsel may be invited by witness, his/her legal representative and other persons at his/her request or with his/her consent;
5) draw upon notes and documents when testifying if testimonies relate to calculations and other data which are difficult for him/her to keep in mind;
6) to refuse to give testimony concerning himself/herself, family members and close relatives, and if he/she cannot freely without undue restrictions receive legal assistance in the amount and form as he/she requires including invitation of a defense counsel;
7) review record of examination and solicit introducing changes and comments therein, to enter such amendments and comments with his/her own hand;
8) file complaints against actions by the inquirer and investigator with the prosecutor;
9) be compensated expenses incurred as a result of the summon to testify.
With appropriate grounds present, a witness has the right to his/her security be ensured through enforcing measures specified by law and in accordance with procedure established in Articles 52-1 to 52-5 of the present Code.
(Article 69-1 is added by Law No 1381-XIV (1381-14) of 13.01.2000, Article 69-1 as amended by Law No2395-VI ( 2395-17 ) of 01.07.2010).


Article 70. Witness’s duties

A person summoned by the inquiry agency, investigator, prosecutor, or court as witness is required to appear in the designated place and time and give true testimonies about circumstances he/she knows.
Whenever a witness does not appear without valid reasons, the inquiry agency, investigator, prosecutor, or court may enforce compulsory appearance under law through Interior agencies as prescribed in Articles 135 and 136 of the present Code.
In case provided for in the second paragraph of the present Article, the court may also impose a fine on the witness in the amount up to a half of the minimum wage. The court decides on the fine in court session when considering the case in whose relation the witness was summoned. The issue of fine can be decided in another court session in the presence of such witness. Witness’s non-appearance without valid reasons does not preclude considering the issue of fine imposition.
(Article 70 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada No No 6834-X ( 6834-10 ) of 16.04.84, No 8627-X ( 8627-10 ) of 20.03.85, by Law No 2857-12 of 15.12.92 ).


Article 71. Witness’s liability

The witness is criminally liable under Article 384 of the Criminal Code of Ukraine for giving knowingly misleading testimonies.
For willful evasion to appear before court, pre-trial investigation agencies or inquiry agencies, the witness is liable under Article 185-3, first paragraph, or Article 185-4 of the Code of Administrative Offenses of Ukraine (80731-10) while, for refusal to give testimonies about circumstances known to him/her, - under Article 385 of the Criminal Code of Ukraine. (Article 71 as amended by virtue of the Decrees of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, No 9166-XI ( 9166-11 ) of 04.05.90, by Law No 2670-III
( 2670-14 ) of 12.07.2001 ).

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 14

INTERROGATING A WITNESS AND A VICTIM

Article 166. Summoning a witness for interrogation

A witness is summoned to appear before investigator by a notice paper which is served to the witness against his/her signed acknowledgment, and if the witness is temporary unavailable, the notice paper is served to any adult family member, to housing maintenance organization, executive committee of the village or settlement council of people’s deputies or administration in the place of his/her employment. The witness may be summoned also by telegram or telephone message.

The notice paper should state who is summoned as witness, where he/she is summoned, who summons the witness, day and time of appearance, implications of non-appearance, referred to in Articles 70 and 71 of the present Code.

An underage witness is summoned through his/her legal representatives.

(Article 166 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84).


Article 167. Interrogating a witness

A witness may be interrogated about facts related to the given case, as well as about the person of the suspect or the accused and victim.

The witness should be interrogated in the place where pre-trial investigation is conducted and, if necessary, in the place of his/her stay.

The witness is interrogated separately from other witnesses. Investigator takes measures so that other summoned witnesses in the case do not communicate one with another before interrogation has ended.

Before proceeding to interrogation, investigator establishes the person of the witness, explains him/her in what case he/she is summoned, and admonishes him/her of the duty to tell everything he/she knows in the case, as well as advises the witness of criminal liability for refusal to testify and for knowingly misleading testimonies. Thereafter, investigator finds out relationship between the witness and the suspect or accused and the victim and starts the interrogation. After the witness has ended testifying, investigator asks him/her questions. It is not permitted to ask questions containing a reply, a part of reply, or prompting a reply (leading questions).

If the witness came for interrogation with the defense counsel, the defense counsel is entitled to be present during the interrogation; to give advice to the witness in the presence of the investigator, if the actual circumstances of the case can be used to prosecute witness personally or his/her family members or close relatives; to ask questions with the permission of the investigator, which should be entered on the record of interrogation to clarify and supplement his/her answers; to object to the illegal actions of the investigator concerning his/her conduction of interrogation with reference to the rule of law which is violated, that is to be included into the record of interrogation; to challenge actions of the investigator in the manner prescribed by this Code, if the nature and content of the questions shows that the witness should be interrogated as a suspect.

(Article 167 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84; by Law No 1833-III (1833-14 of 22.06.2000, No 2395-VI
( 2395-17 ) of 01.07.2010 ).


Article 168. Interrogating an underage witness

A witness under 14 years and, upon investigator’s discretion, under 16 years is interrogated in accordance with Article 167 of the present Code in the presence of a pedagogue and, if necessary, a doctor, parents or any other legal representatives of the underage witness. Before interrogation, the above mentioned persons are advised of their duty to be present during interrogation and of their right to make comments and, upon investigator’s authorization, ask the witness questions. Questions legal representatives, pedagogue, or doctor ask the witness, are entered in the record of interrogation. Investigator may dismiss a question but such question should be entered in the record.

The witness who has not attained 16 years is advised of his/her duty to tell only the truth but he/she is not admonished of criminal liability for refusal to testify and for knowingly misleading testimonies.


Article 169. Interrogating a dumb or deaf witness

A dumb or deaf witness is interrogated in accordance with Article 167 of the present Code with the involvement of the person who understands the witness. Participation of such a person in the interrogation is reflected in the record.


Article 170. Record of witness’s interrogation

A record of witness’s interrogation is drawn up in accordance with Article 85 of the present Code. In addition, the record of interrogation states: last name, first name, and patronymic of the witness; his/her age; nationality, ethic origin, education, place of employment, occupation or position, place of residence, and information on his/her relationship with the accused and victim.

The record should contain a note that the witness was advised of his/her rights, duties, and liability for refusal to testify and for knowingly misleading testimonies. Testimonies given by the witness and answers to questions are narrated in the grammatical category of the 1st person singular and, as far as possible, word-by-word.

Upon his/her request, the witness can be given the possibility to handwrite his/her testimonies in the presence of investigator, and an appropriate entry is made thereon in the record.

After interrogation has been completed, investigator produces the record to the witness for review.

Upon request of the witness, investigator reads out the record to the witness. The witness and persons who were present during interrogation may request supplementing the record and introducing amendments therein. Such supplements and amendments should necessarily be entered in the record by the investigator.

The witness, investigator, and persons who were present during interrogation sign the
record. If the record is written on several pages, the witness signs each page thereof.

(Article 170 as amended by Law No 1381-XIV (1381-14) of 13.01. 2000).

Rome Statute

Article 93 Other forms of cooperation

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:

(c) The questioning of any person being investigated or prosecuted;