Part One
GENERAL PROVISIONS

Chapter VII
EVIDENTIARY ACTIONS

5. WITNESS

Persons who May Be Heard as Witnesses

Article 107
(1) Persons who are likely to provide information regarding the criminal offence and the perpetrator and other relevant circumstances shall be summoned as witness.

(2) The injured party, subsidiary Prosecutor and private Prosecutor may be heard as witnesses.

(3) Every person summoned as witness shall answer the summons and, unless otherwise prescribed by this Code, shall testify as well.

Persons Who May Not Be Heard as Witnesses

Article 108
The following persons shall not be examined as witnesses :

1) persons who would by giving testimony violate the duty of keeping the data secret within the meaning of regulations prescribing data secrecy, until the competent authority releases them from that duty ;
2) defense attorneys may not testify with regard to information accused persons have confided to them in their capacity as defense attorneys ;
3) persons who would by giving testimony violate the duty of keeping a professional secret (religious confessors, attorneysat-law, medical professionals and other health system employees, journalists, as well as other persons) unless they are relieved from this duty by a special regulation or statement of a person who benefits from the secret keeping.
4) minors who, taking into consideration their age and mental development, are not capable to comprehend the importance of the right that they are not obliged to testify.

Persons Exempted from the Duty to Testify

Article 109
(1) Unless otherwise prescribed by this Code the following persons shall be exempted from the duty to testify :

1) the accused persons’ spouses and their extra-marital partners ;
2) accused persons` direct blood relatives, collateral blood relatives up to the third degree as well as and their relatives by marriage up to the second degree ;
3) accused persons` adopted children or adoptive parents.

(2) Exemption from the duty to testify referred to in paragraph 1 of this Article shall not relate to persons that were invited to testify in the procedure for the criminal offence of neglecting and abusing a minor, domestic violence or violence in a family community and incest, when a minor person is the injured party.

(3) The court conducting the procedure shall instruct the persons referred to in paragraph 1 of this Article prior to their hearing or as soon as the court learns about their relation with the accused
person that they are not obliged to testify. The instruction and the answer shall be entered in the record.

(4) If grounds exist for a person to refuse to testify with regard to one of the accused persons, that person shall be exempted from the duty to testify with regard to other accused persons as well if his/her testimony may not, by nature of the matter, limited only to other accused persons.

Testimonies on Which Judgments May Not be Based

Article 110
If a person who may not be heard as a witness within the meaning of Article 108 of the present Code or a person who is not obliged to testify in line with Article 109 of the present Code was heard as a witness but was not cautioned thereof or has not expressly waived that right, or if the caution and the waiver were not entered into the record or if a witness’ testimony was obtained by torture or in a manner referred to in Article 154 paragraph 4 of the present Code, the judgment may not be based
on such witness testimony.

Denial of Answer to Specific Questions

Article 111
Unless otherwise prescribed by this Code, witnesses have the right not to answer particular questions if it is likely that they would thus expose themselves or persons referred to in Article 109, paragraph 1 of the present Code to serious disgrace or criminal prosecution, and the court shall inform the witness
thereon.

Summoning of Witnesses

Article 112
(1) A witness shall be summoned by means of a written summons indicating the first name, surname and occupation of the person summoned, the time and place of appearance, the criminal case involved, a note that s/he is being summoned as a witness, and the instructions on the consequences of an unjustified failure to appear referred to in Article 119 of the present Code.

(2) The summoning of a minor under sixteen years of age as a witness shall be done through their parents or legal representatives, except where it is not possible due to a need to act urgently, or due to other circumstances.

(3) Witnesses who are in another country and witnesses who can not obey the summons due to their old age, illness or serious physical disabilities may be heard in their residence, and in exceptional cases by means of technical devices for the transmission of image or sound, so the parties can ask them questions even though they are not present in the same premises as the witness. For the needs of such a hearing, expert assistance referred to in Article 282, paragraph 8 of the present Code may
be ordered.

(4) The summoning of witnesses may be done over the phone and other electronic communication devices, if the witness agrees to obey such a summon.

Manner of Hearing of Witnesses and Cautions by the Court

Article 113
(1) Witnesses shall be examined separately and in the absence of other witnesses. Witness shall give their testimony orally.

(2) Witness shall be previously warned that they are obliged to tell the truth and not to withhold anything, and also cautioned that giving false testimony constitutes a criminal offence. Witnesses shall be instructed of the right referred to in Article 111 of the present Code and such instruction shall be entered in the record.

(3) After the caution and warning referred to in paragraph 2 of this Article, witnesses shall be asked about their first name and surname, their father’s or mother’s name, occupation, place of residence, place and year of birth, and their relation to the accused and the injured party. Witnesses shall be admonished that they are bound to notify the court of changes of their address or residence.

(4) When a minor is heard, especially if a minor was injured by the criminal offence, special care shall be taken in order to ensure that the hearing would not have an adverse effect on the minor’s mental condition. When necessary, the minor shall be heard with assistance of a psychologist or another expert.

(5) Injured parties who are victims of a criminal offence against sexual liberty, as well as children being examined as witnesses, shall be entitled to testify in separate premises before a judge and
a court reporter, whereas the Prosecutor, accused person and defense attorney shall be given the possibility to view the course of hearing from other premises and to put questions to the witness, after having been duly instructed by the court thereon. The instruction shall be entered in the record.

(6) The court may decide that the provision of paragraph 5 of this Article be also applied to the testimony of the injured party who is the victim of dicrimination.

Hearing and Confrontation of Witnesses

Article 114
(1) After general questions, witnesses shall be called upon to state everything known to them about the criminal case, whereupon questions shall be directed to them in order to check, complete or clarify the testimony. It shall be forbidden to deceive the witness or to ask leading questions during the hearing of witnesses.

(2) Witnesses shall always be asked how do they know the facts they are testifying about.

(3) Witnesses may be confronted if their statements do not match as regards important facts. Only two witnesses may be confronted simultaneously. Provisions referred to in Article 102, paragraphs 1 and 3 of the present Code shall be applied accordingly regarding the confrontation of witnesses.

(4) Injured parties heard in the capacity of witnesses shall be asked about their desires with respect to satisfaction of a property claim in the criminal proceedings.

Identification of Persons or Objects

Article 115
(1) If it is needed to establish whether witnesses recognize a certain person or object that they have previously described, that person shall be presented to them, together with other unknown persons whose basic physical characteristics are similar to the ones they have described, or that object, together with other objects of the same or similar kind. Afterwards, witnesses shall be asked to state whether they identify the person or object with certainty and if positive, to indicate the identified person or object.

(2) In the preliminary investigation and in the investigation, identification shall be conducted by the State Prosecutor who shall previously warn and caution witnesses in line with Article 113 paragraph 2 of the present Code.

(3) Identification shall be conducted so that the person who is the object of identification may not see the witness, nor may the witness see that person before idetification commences.

(4) Record shall be composed on the course of identification and on the statements of witnesses and a joint photo taken of persons or objects being identified, and where appropriate, audio or audiovisual recording may be carried out.

Hearing of Witness Through an Interpreter

Article 116
If witnesses testify through an interpreter or if witnesses are deaf or mute, they shall testify pursuant to Article 106 of the present Code.

Taking an Oath

Article 117
(1) Witnesses may be required to take the oath before testifying.

(2) Before the main hearing, witnesses may take the oath only if concern exists that they will not be able to appear at the main hearing due to illness or other reasons. Reasons why the oath was taken then shall be entered into the record.

(3) The text of the oath is worded as follows: "I do swear to tell only the truth about everything I am asked before the court, and not to withhold anything which has come to my knowledge".

(4) Witnesses shall take an oath orally by reading its text or by answering affirmatively after the contents of the oath has been read to him by the authority before which the proceedings are conducted. Witnesses that are mute and literate shall sign the text of the oath, and those deaf or mute who are illiterate shall be sworn through an interpreter.

(5) The rejection of the witness to take an oath and the grounds thereof shall be entered into the record.

Persons Forbidden to Take an Oath

Article 118
The following persons shall not take an oath :

1) who are not of age at the time of hearing ;
2) for whom it has been proved or grounded suspicion exists that they have committed or participated in the commission of an offence for which they are being heard ;
3) who due to their mental conditions are unable to comprehend the importance of the oath.

Measures to Provide for Appearance of Witnesses and Procedural Penalties

Article 119
(1) If duly summoned witnesses fail to appear and do not justify their absence, or if they leave without authorization or justifiable reason the place where they are to testify, the court may order their compulsory apprehension as well as impose a fine in an amount not exceeding €1.000.

(2) If witnesses appear and after being warned and cautioned in line with Article 113, paragraph 2 of the present Code, refuse to testify without a legal cause, they may be punished by a fine in an amount not exceeding €1.000, and if thereafter they still refuse to testify, they may be imprisoned. Imprisonment shall last until witnesses agree to testify or until their testimony becomes irrelevant or until the completion of the criminal procedure, but not longer than two months.

(3) If witnesses offend the court and other participants in the procedure or threaten them, the court shall warn them and may impose a fine in an amount not exceeding €1.000.

(4) In the preliminary investigation and investigation, the fines referred to paragraphs 1, 2 and 3 of this Article shall be imposed by the court at the motion of the State Prosecutor.

(5) The panel referred to in Article 24, paragraph 7 of the present Code shall decide on an appeal against the ruling ordering a fine or imprisonment. An appeal against a ruling on imprisonment shall not stay the enforcement.

Protection of Witnesses from Intimidation

Article 120
(1) If reasonable concern exists that by giving a statement or answering certain questions witnesses would put in danger their, their spouse’s, close relative’s or a close person's life, health, physical integrity, freedom or property of great value, witnesses may withhold from giving the data referred to in Article 113, paragraph 3 of the present Code, answering certain questions or giving the statement altogether until their protection is secured. If it finds that the refusal to give a statement is manifestly illfounded, the authority conducting the proceedings shall caution witnesses that fines specified in Article 119 of the present Code may be imposed on them.

(2) Witness protection shall consist of special ways of participating and hearing witnesses in the criminal procedure.

(3) Protection of witnesses and other persons referred to in paragraph 1 of this Article may be secured beyond the criminal procedure as well, in line with the law regulating witness protection.

(4) The court shall inform the witness on the rights referred to in paragraphs 1, 2 and 3 of this Article.

Special Ways of Participating and Hearing Protected Witnesses

Article 121
(1) Special ways of participating and hearing witnesses in the criminal procedure are: hearing of witnesses under pseudonym, hearing with assistance of technical devices (protective wall, voice simulators, devices for transmission of image and sound) and alike.

(2) If special way of hearing of witnesses in the procedure consists only of withholding data referred to in Article 113, paragraph 3 of the present Code, the hearing shall be done under pseudonym, while in other part of the procedure, the hearing shall be done in accordance with general provisions of the present Code on the hearing of witnesses.

(3) If special ways of participating and hearing witnesses in the procedure consists of withholding data referred to in Article 113, paragraph 3 of the present Code as well as of hiding the face of the witness, hearing shall be done through technical devices for transmission of image and sound. The specialist referred to in Article 282, paragraph 8 of the present Code shall operate a technical device. During the hearing, face and voice of the witness shall be changed. During the hearing, witnesses shall be in the room other than the one where the investigating judge and other persons present at the hearing are. The investigating judge shall ban all the questions which could lead to revealing the identity of witnesses.

(4) After the hearing has been completed, witnesses shall sign the record using pseudonym only in the presence of the investigative judge and court reporter.

(5) Persons who in whatever capacity, learn the details about the witness referred to in paragraphs 2 and 3 of this Article shall keep them secret.

Deciding on Special Ways of Participating and Hearing Witnesses and Protection of Data

Article 122
(1) The ruling on the special manner of participation and hearing of the protected witness in investigation shall be issued by the investigative judge at the motion of witnesses, the accused person, the defence counsel or the State Prosecutor, whereas at the main hearing it shall be issued by the Panel. The motion shall contain a statement of reasons.

(2) The investigating judge shall, prior to issuing the ruling, ascertain as to whether the testimony of the witness is of such a relevance to be given the status of a protected witness. For the purpose of ascertaining these facts, the investigating judge may fix a hearing for the State Prosecutor and the witness to appear in court.

(3) Details of the witness who is to participate in a special way in the procedure shall be sealed in a special cover and kept by the investigative judge. A note shall be put on the cover saying "Protected Witness – Secret". The cover envelope may be opened only by the panel adjudicating at the main hearing and the second instance court in the appellate procedure, but the opening thereof shall be entered into the record together with the names of the members of the panel who came to the knowledge of its contents. After this the cover shall be sealed again and returned to the investigative judge.

Probative Value of the Protected Witness’s Statement

Article 123
(1) Provisions of Articles 120, 121 and 122 of the present Code shall be applied to the hearing of protected witness at the main hearing as well.

(2) A judgment may not be based solely on the statement given by the witness in the manner set forth in Articles 120, 121 and 122 of the present Code.

Protection of the injured party while giving a statement

Article 124
Provisions of Articles 120 to 123 of the present Code shall be applied accordingly to participation and hearing of the injured party in the criminal proceedings as well.