Examination of witnesses - authority - ICC proceedings

Estonia

Estonia - Criminal Procedure Code 2003 (2017) EN

Chapter 3
PROOF

Division 2
Hearing of Witnesses

§ 66. Witness

(1) A witness is a natural person who may know facts relating to a subject of proof.

(2) A suspect or accused or the official of the investigative body, prosecutor or judge conducting the proceedings in the criminal matter shall not participate in the same criminal matter as witnesses. An official of an investigative body, prosecutor or judge who has been conducting proceedings in the criminal matter may be a witness in the court proceeding in the case specified in subsection 289 (4) of this Code for verifying the reliability of evidence.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(1) The testimony of a witness concerning such facts relating to a subject of proof of which the witness has become aware through another person shall not be evidence unless :

1) the direct source of the evidence cannot be heard for the reason specified in subsection 291 (1) of this Code ;
2) the content of the testimony of the witness is what he or she heard from another person about the circumstances perceived by him or her immediately before speaking in the case the specified person was, during speaking, still under the influence of what he or she had perceived, and there is no basis to believe that he or she distorts the truth ;
3) the content of the testimony of the witness is what he or she heard from another person and which contains the admission of commission of a criminal offence or which is in another way in obvious conflict with the interests of the speaker ;
4) the content of the testimony of the witness is the circumstances relating to a criminal offence committed jointly.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(3) A witness is required to give testimony unless there are lawful bases specified in §§ 71-73 of this Code for refusal to give testimony. While giving testimony, the witness is required to tell the truth.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

Chapter 3
PROOF

Division 4
Confrontation, Comparison of Statements to Circumstances and Presentation for Identification

§ 77. Confrontation

(1) Persons may be confronted if a contradiction contained in their statements cannot be eliminated otherwise.

(2) In confrontation, the relationship between the persons confronted shall be ascertained and questions concerning the contradicting facts shall be posed to them in series.

(3) In confrontation, the previous statements of a person confronted may be disclosed and other evidence may be submitted.

(4) With the permission of an official of the investigative body, the persons confronted may pose questions to each other through the official concerning the contradictions contained in their statements. If necessary, the official of the investigative body changes the wording of a question posed.

(5) In the course of confrontation, statements are obtained pursuant to subsections 66 (21) and 68 (2)-(6) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(6) The body conducting proceedings may organise the participation of a person confronted in confrontation by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code. Confrontation organized by means of a technical solution shall be video recorded.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 78. Record of confrontation

(1) A record of confrontation shall set out the course and results of the procedural act in the form of questions and answers in the order of the questions posed and answers given.

(2) At the request of the body conducting proceedings the correctness of each answer recorded shall be confirmed by the signatures of the persons confronted.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

(3) If the answers of the persons confronted coincide, the answers may be recorded as a single answer.

(4) If the previous statements of a person confronted are disclosed or other evidence is submitted, such disclosure or submission shall be evident from the wording of the questions recorded.

§ 79. Comparison of statements to circumstances

(1) Upon comparison of statements to circumstances, a proposal shall be made to a suspect, accused, victim or witness who has been interrogated or heard to explain and specify the facts relating to the criminal act on the scene of the act and compare his or her statements to the circumstances on the scene.

(2) If it is necessary in a pre-trial proceeding to compare the statements of several persons to circumstances, the comparison shall be conducted separately with each person.

(3) In the course of comparison of statements to circumstances, statements are obtained pursuant to subsections 66 (21) and 68 (2)-(6) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 80. Report on comparison of statements to circumstances

A report on comparison of statements to circumstances shall set out :

1) the proposal made to the suspect, accused, victim or witness to explain and specify the facts relating to the subject of proof on the scene of events ;
2) the statements given upon comparison of statements to circumstances ;
3) the nature and content of the acts performed by the suspect, accused, victim or witness and the name of the place or object the circumstances relating to which are compared to the statements or acts ;
4) whether and to which extent the circumstances on the scene of events have been recreated in the course of the procedural act ;
5) the location, on the scene of events, of the object the circumstances relating to which are compared to the statements, and information derived from inspection of the object ;
6) the names of the objects which are confiscated in order to be used as physical evidence.

§ 81. Presentation for identification

(1) If necessary, the person conducting a proceeding may present a person, thing or other object for identification to a suspect, accused, victim or witness who has been heard or interrogated.

(2) A person, thing or other object shall be presented for identification with at least two other similar objects.

(3) A set of objects shall not be formed if the object presented for identification is :

1) a body ;
2) an area, building, room or other object in the case of which presentation of several objects concurrently is impossible ;
3) an object the features of which are substantially different from other objects and therefore a set of similar objects cannot be formed.

(4) If necessary, a photograph, film or audio or video recording of a person, thing or other object shall be presented for identification.

(5) Presentation for identification may be repeated if the object was first presented for identification on a photograph, film or video recording or if there is reason to believe that the object was not recognised because it had changed, and it is possible to restore the former appearance of the object.

(6) If a suspect, accused, victim or witness recognises an object which is presented to him or her for identification or confirms the similarity of the object to the object related to the act under investigation, he or she shall be asked to specify the features on the basis of which he or she reached such conclusion and to explain how the object and the act are related. If he or she denies equivalence or similarity, he or she shall be asked to explain how the object or objects presented to him or her differ from the object related to the act under investigation.

(7) If an object or a set of objects is presented for identification, it shall be photographed or video recorded.

(8) In the course of presentation for identification, statements are obtained pursuant to subsections 66 (21) and 68 (2)-(6) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 82. Report on presentation for identification

(1) A report on presentation for identification shall set out :

1) the names of the object or objects presented for identification ;
2) the essential features which were similar for all the objects presented for identification, and where the object presented for identification was located among the other objects ;
3) the place chosen by the person presented for identification among the other persons ;
4) the proposal made to the identifier to watch the object or objects presented to him or her and say whether he or she recognises the object related to the event under investigation and whether he or she finds the object similar to or different from the other objects ;
5) the features by which the identifier recognised the object.

(2) If a person who has been recognised contests the result of the procedural act, a corresponding notation shall be made in the report.

Chapter 3
PROOF

Division 5
Inspection and Inquiries to Electronic Communications Undertakings

§ 83. Objective of inspection and objects of inspection

(1) The objective of an inspection is to collect information necessary for the adjudication of a criminal matter, detect the evidentiary traces of the criminal offence and confiscate objects which can be used as physical evidence.

(2) The objects of inspection are :

1) a scene of events ;
2) a body ;
3) a document, any other object or physical evidence ;
4) in the case of physical examination, the person and the postal or telegraphic item.

(3) If the explanations of a suspect, accused, witness, qualified person or victim help to ensure the thoroughness, comprehensiveness and objectivity of the inspection, such person shall be asked to be present at the inspection.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

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;