Lawyer, Kiev, Ukraine
Kuderska Iryna

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    What you need to know as a witness in a criminal case

    In order not to get into a situation where “All your words will be used against you” you need to know the following:

    The witness is an individual who knows or may be aware of the circumstances that are subject to proof in the course of criminal proceedings and is called to give evidence (Article 65 of the Code of Criminal Procedure of Ukraine).

    If you do not know the circumstances relevant to the case, then it’s better to say that you do not know anything about the questions asked!

    When signing any documents with the investigator, read it carefully and do not sign it if the information in the interrogation report (even a few words) is that you did not say.

    The witness has the following rights (part 1, article 66 of the Code of Criminal Procedure of Ukraine):

    1) to know, in connection with what and in what criminal proceedings he is interrogated;

    2) to use during the testimony and in the conduct of other legal actions the  assistance of a lawyer;

    3) refuse to testify about themselves, close relatives and members of their family who may become the basis for suspicion, accusation of a criminal offense committed by close relatives or members of his family, as well as testimonies regarding information that may be secret (there are some who do not have the right to disclose persons who can not be witnesses) and are not subject to disclosure;

    4) give evidence in his native or other language, which he is fluent in, and use the help of an interpreter;

    5) use notes and documents to give testimony in cases where the testimony concerns any calculations and other information that it is difficult for him to remember;

    6) reimbursement of costs associated with the call for testimony;

    7) to get acquainted with the protocol of interrogation and to submit applied on making changes, additions and remarks to it, and also to make such additions and remarks by oneself;

    You can always write, even opposite each sentence, that “I do not agree!”.

    8) to submit petitions for ensuring security in cases provided for by law;

    9) declare a challenge to the interpreter.

    Witness must:

    1) to arrive on call to the investigator, the prosecutor, the investigating judge or to the court;

    2) give truthful testimony during pre-trial investigation and trial;

    3) not to disclose, without the permission of the investigator, prosecutor, court information, which directly relates to the nature of the criminal proceedings and the procedural actions that are carried out (performed) during it, and which became known to the witness in connection with the performance of his duties.

    1. A person who is involved in procedural actions during the pre-trial investigation as a witness or who has witnessed such actions is obliged, at the request of the investigator, the prosecutor not to disclose information about the procedural action taken.

    Responsibility of the witness (Article 67 of the Code of Criminal Procedure of Ukraine)

    1. For a knowingly false testimony to the investigator, prosecutor, investigating judge or court or refusal to testify to the investigator, prosecutor, investigative judge or court, the witness is criminally liable.
    2. For a malicious evasion of appearance to the investigator, prosecutor, investigative judge or court, the witness shall bear responsibility established by law.

    One of the most important rights of a witness attributed to the right to use during the testimony and participation in the conduct of other procedural actions the legal assistance of a lawyer. The assistance of a lawyer in this case can be decisive for the protection of the rights and interests of the witness.

    The person is summoned to the investigator, the prosecutor, the investigating judge, to the court after for him to serve summons, sending it by mail, e-mail or fax, making a phone call or telegram for him (Article 135 of the Criminal Procedure Code of Ukraine).

    Attention should be drawn to the content of the summons , in which, in accordance with Article 136 of the Criminal Procedure Code of Ukraine, must to be:

    1) the name and position of the investigator, prosecutor, investigating judge, judge performing the call;

    2) the name and address of the court or other institution in which the call is made, telephone number or other means of communication;

    3) the name of the person being called and his address;

    4) the name (number) of the criminal proceeding within which the call is made;

    5) the procedural status in which the summoned person is located;

    6) the time, day, month, year and place of arrival of the summoned person;

    7) the procedural action (actions) for which the person is summoned;

    8) the consequences of the person’s failure to appear on the call, indicating the text of the relevant provisions of the law, including the possibility of using the drive (“delivery”), and the implementation of a special preliminary investigation or special judicial proceeding;

    9) valid reasons why a person may not appear on call, and a reminder of the obligation to inform in advance, the impossibility of appearing;

    10) signature of the investigator, prosecutor, investigating judge, judge, who made the call.

    Summons must be served no later than 3 (three) days before the day when the witness is obliged to arrive on call (Part 8, Article 137 of the Code of Criminal Procedure), or as soon as possible in which the witness will have the opportunity to prepare.

    Confirmation of receipt by the person of the summons to call or familiarize with its contents in another way (Article 136 of the Code of Criminal Procedure)

    1. A proper confirmation of receipt by the witness of the summons to call or familiarize with its contents in another way is the signature of the witness about receiving the summons, including on the postal message, video recording of the delivery of the summons to the person to the agenda, any other data confirming the fact that the person has received the summons on the call or familiarization with its content.
    2. If the witness previously informed the investigator, the prosecutor, the investigating judge, the court about the e-mail address sent to such address, the summons is considered received if it is confirmed by a corresponding e-mail.

    At the same time, it should be noted that are the serious responsibility is provided for the failure of the witness to perform the duties assigned to him.

    Thus, for a malicious evasion of appearance to the investigator, prosecutor, investigative judge or court, the witness is responsible (Part 2, Article 67 of the Code of Criminal Procedure), usually “delivery”, the witness may be detained and brought.

    Article 139 of the Criminal Code of Ukraine provides for the consequences of the absence of a witness without justifiable reasons on call – the imposition of a monetary penalty.

    It must be remembered that the valid reasons for the failure of the witness to appear on the call (art. 138 CCP) are:

    1) detention, custody or serving a sentence;

    2) restriction of freedom of movement as a result of the law or judicial decision;

    3) circumstances of force majeure (epidemics, military actions, natural disasters or other similar circumstances);

    4) the absence of a person in the place of residence for a long time as a result of a business trip, travel, etc .;

    5) a serious illness or stay in a health care institution in connection with treatment or pregnancy if it is impossible to temporarily leave this institution;

    6) the death of close relatives, family members or other close persons or a serious threat to their lives;

    7) untimely receipt of the summons;

    8) other circumstances that make it objectively impossible for a person to appear on a call.

    It is important to know that a witness is not subject to criminal liability for refusing to testify during a pre-trial investigation or in court about:

    • yourself;
    • members of their families;
    • their close relatives.

    According to Clause 1 Part 1 Article 3 of the Code of Criminal Procedure, close relatives and family members include – husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, sibling, sister, grandfather, grandfather , grandmother, grandson, granddaughter, great-grandson, great-granddaughter, adopter, guardian or curator, a person under guardianship or trusteeship, as well as persons who live together are bound by common life and have mutual rights and obligations, including persons, who live together, but are not married.

    The Constitution of Ukraine

    Article 63. A person is not liable for refusing to give testimony or explanations regarding himself, family members or close relatives, the circle of which is determined by law.

    The suspect, accused or defendant has the right to defense.

    Can not be witnesses:

    1) the defender, the representative of the victim, the civil party, the civil defendant, the legal entity against whom the proceedings are being carried out, the legal representative of the victim, the civil party in criminal proceedings – about the circumstances that they become aware of in the performance of the functions of a representative or counsel;

    2) attorneys – information that constitutes an attorney-client privilege;

    3) notaries – information that constitutes a notarial secret;

    4) medical workers and other persons who, in connection with the performance of professional or official duties, have become aware of the disease, medical examination, examination and its results, the intimate and family side of a person’s life – information that constitutes a medical secret;

    5) priests – about the information they received at the confession of believers;

    6) journalists – about information containing confidential information of a professional nature, provided that the authorship or source of information is not disclosed;

    7) judges and juries – on the circumstances of discussion in the advisory room of issues that arose during the adoption of a court decision, except in cases of criminal proceedings in respect of the adoption by a judge (judges) of a knowingly unjust judgment or decision;

    8) persons who participated in the conclusion and implementation of the armistice agreement in criminal proceedings – about the circumstances that they became aware of in connection with the participation in the conclusion and implementation of the armistice agreement;

    9) persons to whom security measures are applied, – with respect to valid data on their identity;

    10) persons who have information about valid data on persons to whom security measures are applied – according to these data.

    The above-mentioned persons may be exempted from the obligation to store professional secrecy by the person who entrusted this information to them in a certain part. Exemption is carried out in writing with the signature of the person who entrusted the specified information.

    They can not, without their consent, be interrogated as witnesses by persons having the right of diplomatic inviolability, as well as workers of diplomatic missions – without the consent of the representative of the diplomatic establishment.

    The investigator, the prosecutor, the investigating judge, the court, before interrogation of such persons, are obliged to explain to them the right to refuse to give evidence.

    Summarizing the above, if you received a summons to call you as a witness for interrogation, I advise you to seek qualified help from a lawyer, at least for advice, in order to understand your rights and prospects.

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