Life is an unpredictable thing. Someone lives for years without crossing paths with judicial institutions or law enforcement agencies, while someone suddenly finds himself at the center of legal events. The neighbor asks to confirm in court that she has lived with Vasyl as a couple for ten years. A colleague receives a summons to the investigator and begins to wonder whether it is because of illegally cut firewood or because the director of the company has disappeared, and his office has already been searched. At the time when you are invited to testify – whether in court or before an investigator – the question arises: is it possible to refuse the role of a witness? What testimony can be given, and what is better to remain silent about?
Lawyers of the “Repeshko and Partners” Bar Association explain the rights and obligations of a witness in various cases, when he has the obligation to appear and when he can refuse to testify, as well as what neglecting his rights and obligations can lead to.
The main thing to always remember is Article 63 of the Constitution of Ukraine, which states: “A person is not responsible for refusing to give a statement or explanation about himself, family members or close relatives, whose circle is defined by law.”
We remind you that close relatives and family members are: husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, grandfather, grandmother, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-great-granddaughter, adoptive parent or adoptee, guardian or custodian, person under guardianship or care, as well as persons living together, are connected by common life and have mutual rights and obligations, including persons who live together but are not married.
Since this right is defined in the Constitution – the main law of Ukraine, it applies everywhere and always, regardless of the situation and the body or official who wants to receive information from you. Memorize this article! This does not mean at all that you do not have the right to testify. Sometimes, on the contrary, it is necessary to give them in order to save the situation or someone’s life. But in case you are caught off guard and asked questions, it is better to use Article 63 of the Constitution of Ukraine. After that, it is necessary to seek help from a lawyer, to whom you can honestly tell everything and work out the line of defense together with him and what exactly can be said and what should not be said in any case. Also remember one useful proverb: “If you keep quiet, you will be mistaken for a smart person.”
You can be a witness in various proceedings, it depends on whether you can avoid this honorable status or no options at all. The status of a witness is defined in the Civil Procedure Code of Ukraine (CPC), the Criminal Procedure Code of Ukraine (CPC), the Code of Administrative Procedure of Ukraine (KASU) and the Code of Ukraine on Administrative Offenses (ACC).
A witness in a civil procedure
Situations like this often happen – when a neighbor asks to come to court and testify that she has been living in the neighboring house with Vasyl as husband and wife for ten years, you can agree to be a witness, or you can refuse. The specificity of civil proceedings is such that if a party has declared a person as a witness, then it must ensure the appearance of this person in court to testify. In this process, it is impossible to record the neighbor as a witness and insist in the court on sending her the twentieth summons with a summons to the court or oblige the police representatives to bring her to the court. An exception here can be only in those cases when we are talking about some officials or employees of enterprises, and even then not always. Yes, in the event that a notary or a technician from the BTI needs to be called as a witness, these persons may appear in court, but not in every case.
Therefore, according to the Civil Code of Ukraine, a witness is every person who knows any circumstances related to the case. The witness is obliged to appear before the court at the appointed time and give truthful testimony about the circumstances known to him. In the absence of objections from the parties to the case, the witness may participate in the court session via video conference. The court may allow a witness to participate in a court hearing via video conference, regardless of the objections of the parties to the case, if the witness cannot appear in court due to illness, old age, disability, or other valid reasons. In case of impossibility to come to the court and participate in the court session in the mode of video conference upon summoning by the court, the witness is obliged to inform the court about this in advance.
At the same time, the witness has the right to testify in his native language or the language he knows, to use written records, to refuse to testify in cases established by law, as well as to compensation for the costs associated with being summoned to court.
It should be noted that if you are asked to sign an act or protocol, there is a very good chance that the next step will be to call you to court as a witness. Decide for yourself in advance whether you need it.
Another thing is that the civil process does not provide for the addition of written explanations of witnesses to the case, even notarized ones, because in this case the notary notarizes not the testimony itself, but only the person’s signature. The questioning of a witness in court takes place after he has been sworn in and warned of criminal liability for giving false testimony.
It is also necessary to know that the following cannot be questioned in court as witnesses:
1) incapacitated physical persons, as well as persons who are registered or undergoing treatment in a psychiatric treatment facility and are unable, due to their physical or mental disabilities, to correctly perceive the circumstances relevant to the case, or to give testimony;
2) persons who are obliged by law to keep secret the information entrusted to them in connection with the provision of professional legal assistance or mediation services during the out-of-court settlement of a dispute, – about such information;
3) clerics – about the information they received at the confession of believers;
4) judges and jurors – about the circumstances of the discussion in the conference room of issues that arose during the adoption of the court decision, or about information that became known to the judge during the settlement of the dispute with his participation;
5) other persons who cannot be questioned as witnesses in accordance with the law or an international treaty, the binding consent of which has been given by the Verkhovna Rada of Ukraine, without their consent.
However, if a person has already appeared in court as a witness, then he does not have the right to refuse to testify, except for testimony against himself, family members or close relatives (husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, grandfather, grandmother, grandson, granddaughter, adopter or adoptee, guardian or custodian, person over whom guardianship or guardianship has been established, a family member or close relative of those persons) who may be legally liable for him or such family members or close relatives. This is directly enshrined in the Civil Code of Ukraine. A person who refuses to give a statement is obliged to notify the reasons for the refusal.
A witness in administrative proceedings
If you litigate with the Pension Fund of Ukraine on the issue of incorrect pension calculation or challenge the actions of the state executor, this all refers to administrative proceedings. As a witness in an administrative case, the court may summon any person who is aware of the circumstances to be clarified in the case. A witness is summoned to a court session at the initiative of the court or the parties to the case. A party to the case, when filing a motion to summon a witness, must indicate his name, place of residence (stay), work or service, and the circumstances regarding which he can testify. The witness is obliged to appear before the court upon its summons and give truthful testimony about the circumstances known to him. In the absence of objections from the parties to the case, the witness may participate in the court session via video conference.
The court may allow a witness to participate in a court hearing via video conference, regardless of the objections of the parties to the case, if the witness cannot appear in court due to illness, old age, disability, or other valid reasons. In case of impossibility to come to the court and participate in the court session in the mode of video conference upon summons of the court, the witness is obliged to inform the court about this in advance. A witness has the right to testify in his native language or a language he knows, to use written records, to refuse to testify in cases established by law, and to be compensated for the costs associated with being summoned to court.
If court cases or proceedings by the police are considered (for example, driving while intoxicated or issues related to the activities of the TCC and SP), these are already administrative offenses regulated by the AUC. As a witness in a case of an administrative offense, any person who is known to be aware of any circumstances to be established in this case may be summoned. When summoned by the body (official), in whose proceedings the case is pending, the witness is obliged to appear at the specified time, give truthful explanations, report everything he knows about the case and answer the questions. At the same time, the whistleblower is a witness in cases of administrative offenses related to corruption. He has the right to preserve the confidentiality of information about him while giving explanations on the case.
According to both the CAS and the AUC, if we are talking about a witness – not an official, but an ordinary citizen, then ensuring his appearance in court is the responsibility of the person who wants to question him as a witness. No one will bring him to court by force. In these processes, Article 63 of the Constitution of Ukraine also applies to the full extent, and judges must ask whether someone present is a relative.
A witness in a criminal trial
And so, finally, the most “scary process” is a criminal one. Here, Article 63 of the Constitution of Ukraine applies not only to the witness, but also to the suspect and the accused, but today we are not talking about them. According to the Criminal Procedure Code of Ukraine, a witness is a natural person who knows or may know the circumstances to be proven during criminal proceedings, and who is called to testify.
It is necessary to know that the following persons cannot be questioned as witnesses in a criminal trial:
1) a defense attorney, a representative of a victim, a civil plaintiff, a civil defendant, a legal entity in respect of which proceedings are being conducted, a legal representative of a victim, a civil plaintiff in criminal proceedings – about the circumstances that became known to them in connection with the performance of the functions of a representative or defense attorney;
2) lawyers – about the information that constitutes the lawyer’s secret;
3) notaries – about information that constitutes a notarial secret;
4) medical workers and other persons who, in connection with the performance of professional or official duties, became aware of an illness, medical examination, examination and their results, intimate and family aspects of a person’s life – about information that constitutes a medical secret;
5) clerics – about the information they received at the confession of believers;
6) journalists – about information that contains confidential information of a professional nature, provided on the condition that the authorship or source of the information is not disclosed;
7) judges and jurors – about the circumstances of the discussion in the conference room of issues that arose during the adoption of a court decision, with the exception of cases of criminal proceedings regarding the adoption by a judge (judges) of a knowingly unjust verdict or decision;
8) persons who participated in the conclusion and execution of the conciliation agreement in criminal proceedings – about the circumstances that became known to them in connection with the participation in the conclusion and execution of the conciliation agreement;
9) persons to whom security measures are applied – regarding valid data about their persons;
10) persons who have information about valid data about persons to whom security measures have been applied – regarding these data;
11) experts – regarding the clarification of the conclusions provided by them.
At the same time, the persons provided for in points 1-5 may be exempted from the obligation to maintain professional secrecy with regard to the specified entrusted information by the person who entrusted them with this information, to the extent determined by him. Such release is made in writing under the signature of the person who entrusted the specified information.
Note that in a criminal trial, a witness has the right to:
1) to know in connection with what and in which criminal proceedings he is being interrogated;
2) use the legal assistance of a lawyer during testimony and participation in other procedural actions,
3) refuse to testify about himself, close relatives and members of his family, which may become a basis for suspicion, accusation that he, his close relatives or members of his family have committed a criminal offense, as well as testify about information that, according to the provisions Article 65 PDAs are not subject to disclosure;
4) to testify in his native language or another language he is fluent in and use the help of an interpreter;
5) use notes and documents when testifying in those cases when the testimony concerns any calculations and other information that is difficult for him to remember;
6) for reimbursement of expenses related to a summons to testify;
7) review the interrogation protocol and make a request to make changes, additions and comments to it, as well as make such additions and comments in your own hand;
8) submit a request for security in cases provided for by law;
9) to challenge the translator.
At the same time, the witness is obliged to:
1) to arrive upon summons to an investigator, prosecutor, investigating judge or court;
2) give truthful testimony during the pre-trial investigation and trial;
3) not to disclose, without the permission of the investigator, the prosecutor, the court, information that directly relates to the essence of the criminal proceedings and the procedural actions carried out (were carried out) during it, and which became known to the witness in connection with the performance of his duties.
It is important to know that a person involved in procedural actions during a pre-trial investigation as a witness or who has become an eyewitness to such actions is obliged, at the request of the investigator, prosecutor, not to disclose information about the procedural action taken. At the same time, for knowingly false testimony to an investigator, prosecutor, investigating judge or court or for refusing to testify to an investigator, prosecutor, investigating judge or court, except for the cases provided for by this Code, the witness bears criminal responsibility. For malicious evasion of appearing before the investigator, prosecutor, investigating judge or court, the witness bears the responsibility established by law.
Therefore, if close relatives and family members decide to testify, they are obliged to tell the truth and are warned of criminal liability for knowingly false testimony. This applies to proceedings under all codes – TsPC, KPC, KAS, AUC. At the same time, always remember that the saying: “Bazika is a find for a spy” is more relevant than ever, especially if it concerns people close to you.
