Procedure for witness testimony - national proceedings

Iceland

Iceland - Criminal Procedure Act 2019 EN

Part 1. General rules on criminal procedure.
Section II. Court sessions, court records, etc.
Article 8
He or she shall meet the ordinary requirements for being a witness and may not be so closely related to the judge, the prosecutor, the accused, the injured party or a representative or a legal counsel as is described in indent d of the first paragraph of Article 6. If the court witness is not an employee of the court, the judge shall decide on the witness’s remuneration.

Part 2. Investigations.
Section VII. General rules on investigations.
Article 54
The act in question shall be investigated and all available evidence pertaining to it shall be collected, e.g. as regards the place and time of its commission and all further circumstances that may be regarded as being of potential significance; the person suspected of the offence shall be sought; witnesses and others who may be regarded as likely to be able to give testimony , shall be found; items to be seized, and other visible pieces of evidence, shall be located . In addition, the scene of the crime, where appropriate, shall be examined, as shall all signs that may remain following commission of the offence.
An examination shall be made of matters pertaining to the accused himself or herself, including (according to whether there is reason to do this) his or her age, personal circumstances (such as family and home background), education, employment and financial standing, conduct and previous offences and his or her level of maturity and state of health, both mental and physical.
An examination shall be made of the accused’s attitudes and motivation for the offence, whether he or she committed the offence on purpose or, as appropriate, through negligence and, if it constituted an attempt, whether he or she abandoned it by free choice. If more than one person was involved in the offence, their parts in it shall be investigated, where possible, separately .

Part 2. Investigations.
Section XV. Procedure in investigations before a court.
Article 106
If a request under examination by a court is that the accused, or a witness, be questioned, the judge shall consider whether the conditions of Article 59 for this are met. If the accused is to be questioned, he or she shall be brought to court by the police if he or she has been arrested or remanded in custody; otherwise, the provisions of the first and second paragraphs of Article 120 shall apply regarding the summonsing of a person to be questioned and, as appropriate, for calling him or her to a session of a court, and of Article 121
regarding a response to a situation in which the person does not attend court or a witness fails to discharge the duties of a witness in other respects.

During the examination of a request for custody or other measures under Section XIV, the accused shall be obliged to attend court and make a statement there if the police or the prosecutor consider this necessary.

As the occasion arises, a party may also request that oral questioning take place before the court during the hearing of a case under this Section. The judge shall adopt a position on such a request, having regard to the third paragraph of Article 110.

Procedure in the questioning of the accused and of witnesses in court shall be subject to the provisions of Sections XVII and XVIII. As far as is possible, questioning under the first paragraph shall be recorded on video or digital video disc (DVD).

Section XVIII. Witnesses.
Article 116
Any person who has reached the age of 15, is subject to Icelandic jurisdiction and is nether the defendant nor his or her representative, shall be obliged to appear in court as a witness to answer oral questions put to him or her regarding the circumstances of the case. Persons who gave the prosecution or the police expert assistance or advice before the action was brought shall moreover be obliged to attend court as witnesses in order to answer oral questions put to them about specialist matters.
The judge shall assess, with regard to the circumstances in any given instance, whether a person who is younger than is stated in the first paragraph may be obliged to be questioned as a witness. The judge shall adopt the same approach regarding persons who are not in sound mental health.

If a witness is unable to come to the court venue due to illness or similar reasons, the judge may decide that he or she is to give testimony at another location where this is possible.

If a witness is located far from the court venue, or would encounter particular inconvenience in attending the court, the judge may decide to have him or her questioned at the session of the court by telephone or another telecommunications device, providing the questioning is structured in such a way that all those present at the court session are able to hear the verbal exchanges with the witness. This authorisation may not be used, however, if it may be expected that the outcome of the case could be determined by what the witness says.
In a summons under the second paragraph of Article 120, the judge may require a witness to bring items of evidence to show the court, or to examine his or her books, documents or other items and make a summary of specific matters in them in order to clarify the circumstances of the case. This shall not apply, however, if the documents or items contain information covered by the second paragraph of Article 119.

Article 117
The following persons may refuse to give witness testimony, entirely or in part:
a. a person who is, or used to be, the spouse of the defendant,
b. the defendant’s relatives in direct line of descent, siblings and persons related to him or her in this way by adoption,
c. the defendant’s step-parent or step-child,
d. the defendant’s parent-in-law or child-in-law.
The judge may release other persons who are, or who have been, very close to the defendant, from the obligation to give evidence, e.g. in the case of a foster-parent or foster-child, a cohabiting partner (female or male), girl-friend or boy-friend.

A defence counsel may not bear witness in his or her client’s case without the client’s permission.
Civil servants and district commissioners are not obliged to appear in court to give testimony on matters that have occurred in their offices or their official functions and may be sufficiently demonstrated by means of certificates from official records or some other official document.

Article 118
Witnesses shall be entitled to refuse to answer questions if there is reason to believe that an answer could constitute an admission, or an indication, that they have committed a punishable offence or an act which could bring them into moral disrepute or cause them substantial financial loss. The same shall apply if there is reason to believe that an answer would have the same consequences for any person connected with the witness in a manner described in the first or second paragraph of Article 117.

The judge may exempt witnesses from revealing secrets regarding their commercial dealings, discoveries or inventions or other such activities if he or she considers the witness’s interest in maintaining secrecy to outweigh substantially the interest served by obtaining the evidence.

Part 3. Proof and evidence.
Section XVIII. Witnesses.
Article 122
When a witness appears in court, the judge shall first have him or her state his or her name, ID number and address, and then examine, as necessary whether the witness is obliged to answer questions. The judge shall then impress upon the witness in serious terms the obligation he or she is under to give true and accurate answers and not to conceal anything, drawing the witness’s attention to the criminal liability and moral responsibility involved in giving false evidence, consciously or through inattention, and also to the fact that the witness may be required to confirm the veracity of his or her testimony by swearing an oath or giving his or her word of honour.

When this has been done, questions shall be put to the witness. The judge shall allow the prosecutor and the counsel for the defence put questions to the witness; normally, the prosecution shall ask first, followed by the counsel for the defence. Furthermore, the legal rights protector shall be given an opportunity of stating to the judge any questions that he or she wishes to have put to the witness (cf. the third paragraph of Article 46). The judge shall be entitled to re-word, revise and clarify these questions before the witness answers them and prevent questions being put to the witness that are vague, ambiguous, tendentious, needlessly insulting or hurtful, put in order to confuse the witness or evidently devoid of purpose. The judge may deprive a person who abuses the entitlement in this way of the right to put questions to the witness and take charge of the questioning himself or herself. The judge may also require a witness to give further clarification of an answer so that its content is stated clearly, and may also question the witness independently, or possibly at the request of the defendant.
If a witness has previously given testimony to the police, including as provided for under the first or second paragraph of Article 60, or to the court in the case, the judge shall not submit that testimony and other visible items of evidence to the witness until he or she considers this to be necessary in order to clarify or to correct the witness’s recorded testimony. The same shall apply regarding testimony that the witness may have given to a government authority other than the police while the case was under investigation.
Each witness shall normally be questioned separately without other witnesses hearing the proceedings. If a party so requests, the judge may nevertheless decide that witnesses are to be questioned together with the defendant or another witness.
If the court session is open and a question put to a witness is such that the answer to it will have a bearing on the private circumstances of the witness or other persons, the judge may have the witness answer the question in writing. In that case, the answer shall be entered in the records and the parties and the witness shall be given an opportunity to confirm that the record is correct without it being read aloud.
The judge shall give witnesses guidelines regarding their duty and right to give evidence. If a witness considers that he or she is not under any obligation to give evidence or to answer individual questions, or maintains that he or she lacks permission to do so, the witness shall then be obliged to state arguments supporting the probable facts in this regard. The judge may permit a witness to call other persons before the court to give evidence for this purpose.
When a witness gives evidence, the judge shall, as necessary, seek to establish matters regarding the assessment of the witness’s credibility. In this, the judge shall normally seek to establish whether the testimony of the witness is based on the witness’s own perception or on rumours borne by other persons. Furthermore, the judge shall make special efforts to establish whether the witness’s attitude towards the case, or towards the defendant or, as appropriate, the injured party, is in some way such that it could influence the evidential value of the witness’s testimony.
The judge may, at the demand of the prosecutor, the defendant or the witness, decide that a witness who appears in court shall not state his or her name, ID number and address aloud (cf. the first paragraph) or identify himself or herself in any other way if the judge considers that the witness’s life, health or freedom, or that of his or her close relatives (cf. the first or second paragraph of Article 117) could be jeopardized if his or her identity were known. Nevertheless, the judge shall not comply with a request for witness anonymity unless there is a cogent reason for doing so and there is no reason to believe that the anonymity of a witness could significantly undermine the defendant’s case. In such cases, the judge shall be informed, in writing and confidentially, of the witness’s name and other details that are to be kept secret; materials containing this information shall then be kept securely so as to ensure that others do not gain access to them. If an appeal is lodged in the case with [a higher court], 1) this information shall accompany it in the same way.

Rome Statute

Article 69 Evidence

1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness.

2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused.