Chapter 3PROOF

Division 2Hearing of Witnesses

§ 68. Interrogation of witnesses
(1) The rights and obligations of witnesses and the right to write their testimony in their own hand shall be explained to the witness.
(2) A witness of at least fourteen years of age shall be warned against refusal to give testimony without a legal basis and giving knowingly false testimony, and the witness shall sign the minutes of the hearing to that effect. If necessary, it is explained to the witness that intentional silence on the facts known to him or her shall be considered refusal to give testimony.
(3) While giving testimony, a witness may use notes and other documents concerning numerical data, names and other information which is difficult to memorise.
(4) A witness may be heard only as regards the facts relating to a subject of proof. Leading questions may be posed only in the cases specified in clauses 2881 (2) 2)-5) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
(5) [Repealed - RT I, 23.02.2011, 1 - entry into force 01.09.2011]
(6) Questions concerning the moral character and habits of a suspect, accused or victim may be put to a witness only if the act which is the object of criminal proceedings needs to be assessed in inseparable connection with his or her previous conduct.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 69. Telehearing
(1) A body conducting the proceedings may organise telehearing if the direct hearing of a person is complicated or unreasonably burdensome or if telehearing is necessary to protect the interests of the person.
[ RT I, 06.05.2020, 1 - entry into force 07.05.2020]
(2) For the purposes of this Code, telehearing means hearing:
1) by means of a technical solution, as a result of which the testimony of the person heard is seen and heard directly via live coverage and he or she can be asked questions;
2) by phone, as a result of which the testimony of the person is immediately heard and he or she can be asked questions.
[ RT I, 06.05.2020, 1 - entry into force 07.05.2020]
(3) [Repealed - RT I, 06.05.2020, 1 - entry into force 07.05.2020].
(4) The minutes of a telehearing shall contain a notation that the witness has been warned against refusal to give testimony without a legal basis and giving knowingly false testimony.
(5) The provisions of § 48941 of this Code apply to hearing of persons staying in a foreign state, in co-operation between the Member States of the European Union, and in other cases the provisions of § 468 of this Code.
[ RT I, 06.05.2020, 1 - entry into force 07.05.2020]
(6) The Minister responsible for the area may establish more specific requirements for organising telehearing.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 69.1. Deposition of testimony
(1) The Prosecutor’s Office, suspect or counsel may request hearing, before a preliminary investigation judge, of a person who is a witness in criminal proceedings, if the object of criminal proceedings is an intentional criminal offence for which at least up to three years' imprisonment is prescribed as punishment.
(2) A court shall grant the request if circumstances arise which enable to conclude that later hearing of a witness in judicial hearing of a criminal matter may be impossible or the witness may be influenced to give false testimony. The court shall formalise denial of the request by a reasoned order which can be contested by way of an appeal against the court order.
(3) The court shall resolve the request for deposition of testimony within five days as of the receipt thereof and if the request is granted shall determine, at the earliest opportunity, the time of hearing and notify the Prosecutor’s Office and the counsel immediately thereof.
(4) The prosecutor, counsel, suspect and witness shall be summoned to the hearing before a preliminary investigation judge. A suspect shall not be summoned to hearing at the request of a witness or the prosecutor if the presence of the suspect at the hearing poses a threat to the safety of the witness. Summoning of persons to deposition of testimony shall be arranged by the participant in proceedings who requests the hearing. A counsel may request the assistance of a preliminary investigation judge for summoning a person to the extent provided for in subsections 1631 (4) and (5) of this Code.
(5) Failure of a suspect who has received his or her summons to appear does not hinder the hearing. No hearing shall be conducted if a prosecutor or counsel who has received his or her summons does not appear for good reason and has given a prior notice thereof to the court. If the participant in proceedings who requested the hearing fails to appear for hearing or the person whose hearing is requested by a judge is not taken to the judge, no hearing shall be conducted before the preliminary investigation judge.
(6) The provisions of §§ 155-158 and 287-291 of this Code shall apply to hearing and taking of minutes thereof.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 69.2. Written testimony
(1) In pre-trial procedure, a body conducting proceedings may require a witness to provide written answers to the questions posed within the term prescribed by the body conducting the proceedings if the body conducting the proceedings finds that direct or telehearing is not practicable.
(2) A person who is required to answer any questions in writing shall be informed of their rights, obligation and liability and explained that regardless of giving written testimony he or she may be called to a hearing.
(3) A person who gives written testimony shall confirm via the E-File system by his or her signature or in any other manner which can be reproduced that he or she has been advised of his or her rights, obligations and liability and that the answers given by him or her are true.
[ RT I, 06.05.2020, 1 - entry into force 07.05.2020]

Chapter 10PROCEDURE BEFORE COUNTY COURTS
[RT I 2005, 39, 308 - entry into force 01.01.2006]

Division 4Judicial Examination

§ 287. Hearing of witnesses
(1) Section 288 of this Code applies to the hearing of witnesses.
(2) A witness shall be heard in the absence of the witnesses who have not been heard.
(3) [Repealed - RT I 2008, 32, 198 - entry into force 15.07.2008]
(4) A witness bearing a fictitious name shall be heard by telephone pursuant to the procedure provided for in subsection 67 (5) and clause 69 (2) 2) of this Code. The participants in proceedings shall submit their questions to the person bearing a fictitious name through the judge.
(5) At the request of a party or on its own initiative, the court may allow a telehearing to be conducted pursuant to the procedure provided for in § 69 of this Code or use a partition to hide the witness form the accused. Telehearing by phone is permitted only with the consent of the accused, except for the case provided for in subsection (4) of this section.
[ RT I, 06.05.2020, 1 - entry into force 07.05.2020]
(6) Witnesses who have been heard shall leave the courtroom only with the permission of the court.

§ 287.1. Application of hearing
(1) A judge shall identify a witness and ascertain the relationship between the witness and the accused and the victim and the relationship between the victim and the accused.
(2) The personal data of a witness shall not be disclosed if the witness has been declared anonymous pursuant to § 67 of this Code in order to ensure the safety of the witness.
(3) At the beginning of hearing a witness, the court explains to the witness the legal bases for refusal to give testimony, the obligation to speak the truth in court, and obtains the signature of the witness to this effect.
(4) A judge shall warn a witness of at least fourteen years of age that he or she shall be punished pursuant to criminal procedure for his or her for refusal to give testimony without any legal basis or for giving knowingly false testimony.
(5) A witness who has been acquitted or convicted in the same criminal offence as a joint principal offender or an accomplice shall not be warned about a criminal punishment and he or she shall be explained his or her right to refuse to give testimony.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 288. Cross-examination
(1) In a cross-examination, the party to judicial proceedings at whose request the witness has been summoned to the court is the first to examine the witness. If several participants in proceedings have requested a witness to be summoned and they fail to reach an agreement concerning the right of first examination, the court shall determine who is the first to examine the witness.
(2) It is prohibited to pose leading questions during a first examination without the permission of the court. A first examination is followed by the second examination by the counter-party.
(3) Leading questions may be posed in the second examination in order to verify the testimony given in the first examination. In the second examination, leading questions shall not be posed concerning new facts without the permission of the court.
(4) The person who was the first to examine a witness may examine the witness again in order to clarify the answers given in the second examination. Leading questions may be posed without the permission of the court only concerning the new facts treated in the second examination.
(5) A court may, at the request of a party to judicial proceedings, overrule prohibited or irrelevant questions posed to a witness during cross-examination. The court may, on its own initiative, overrule questions which harm the witness' dignity.
(5.1) The provisions of § 2881 of this Code shall be taken into account upon asking leading questions in a cross-examination and granting of permission by court.
[RT I, 21.06.2014, 11 - entry into force 01.07.2014]
(6) The court has the right to pose questions to a witness who has been cross-examined.
(7) Taking into consideration the mental or physical condition of a witness, the court may prohibit cross-examination and examine the witness on its own initiative or on the basis of the written questions prepared by the parties to judicial proceedings.
(8) § 66 and subsections 68 (3) and (6) of this Code apply to cross-examination.
(9) During cross-examination, a party to judicial proceedings may:
1) use visual aids which are not evidence but help to present the testimony of the witness without being misleading;
2) submit evidence and documents to the court and question the witness about their authenticity, origin and interconnection thereof;
3) allow the witness who does not remember the facts relating to a subject of proof to examine a document or another object which may help the witness to recall the facts regardless of the admissibility of such documents or objects as evidence.
(10) If a witness refuses during cross-examination to answer the question of a party to judicial proceedings, with the exception of the case prescribed in subsection (5) of this section, the court interrupts the cross-examination and decides on the use of the earlier testimony given by the witness as evidence at the request of the party on the basis of clause 291 (1) 2) of this Code regardless of the content of the testimony hitherto given in the cross-examination. In the case specified in this subsection, testimonies obtained in interrupted cross-examinations are evidence only with the consent of the parties.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 288.1. Leading questions
(1) A court may allow to pose leading questions during the first examination if the witness is clearly hostile with respect to the person who examines the witness first, clearly ties to hide the truth or absconds from replying to questions.
(2) For the purpose of a smoother progress of the hearing of a witness, a court may allow to pose leading questions in other cases if:
1) the parties consent to thereto;
2) the question pertains to a fact or contains a statement which is not contested;
3) the question is necessary to for making an introduction to the object of questioning;
4) due to the age or state of health of the witness it is difficult for him or her to understand questions which are not leading;
5) the witness states that he or she does not remember well the circumstances which are the object of the questioning.
(3) If a party has not applied from the court the exclusion of a question before commencement of replying to it, the party shall be deemed to have agreed to the question and the court need not give a separate permission for leading questions.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 288.2. Rights of victims, civil defendants, third parties and accused in cross-examination
(1) A victim, civil defendant, third party and accused are the first to examine a witness requested by them if the prosecutor or a counsel has not requested the summoning of the same person.
(2) In the cases not specified in this section, a victim, civil defendant, third party and accused may pose questions to a witness after the cross-examination with the permission of the court, if denial of the request would significantly damage the interests of the participant in proceedings.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 289. Verification of credibility of witnesses
(1) In order to verify the credibility of the testimony of a witness, the court may, at the request of a party to judicial proceedings, order that the testimony given by the witness in pre-court procedure be disclosed during cross-examination if such testimony is in conflict with the testimony given in the cross-examination.
(2) Testimony given by a witness in pre-court procedure concerning which the witness has already given testimony in cross-examination may be disclosed.
(3) In order to verify credibility, other documents or data recordings which contain earlier statements of the witness and which are in conflict with the testimony given during cross-examination may be also disclosed during cross-examination.
(4) For verification of credibility of a witness, persons to whom the witness has previously made a statement which is in conflict with the testimony given in cross-examination may be heard or interrogated.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 289.1. Earlier testimony of witness in court as evidence with possibility of cross-examination
(1) A court may accept the earlier testimony of a witness used on the basis specified in subsection 288 (9) of this Code for proving the facts relating to the subject of proof, if:
1) the testimony is deposited; or
2) the testimony concerns the damage caused to the witness by the criminal offence that is the subject of the proceedings, the testimony was given immediately after the commission of the criminal offence and there is reason to believe that the person remembered such facts considerably better at the time of giving the testimony than during judicial proceedings.
(2) A court shall accept the earlier testimony disclosed on the basis specified in § 289 of this Code for establishment of the facts relating to a subject of proof , if such testimony has been deposited.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]