Witnesses In Criminal Proceedings Research Articles

Przesłuchanie świadka w procesie karnym w trybie art. 185e Kodeksu postępowania karnego

The article analyses the new special procedure for hearing witnesses in criminal proceedings under Article 185e of the Polish Code of Criminal Procedure, based on the model in pre-trial investigation. The provision discussed is part of a wide-ranging amendment of the so-called anti-violence act 2.0. The authors consider the currently applicable catalogue of activities that the courts undertake in pre-trial investigation, and subsequently analyse the special hearing procedure under Article 185e of the Code of Criminal Procedure, which is a new procedure for the courts in pre-trial investigation. The authors of this article believe this amendment should be evaluated as positive, because it makes the justice system more friendly to the excluded. Furthermore, this is a starter for a discussion on changing the judicial review model in pre-trial investigation and specifying the role of authorities taking part at this stage of proceedings.

Anonymous witnesses and the accused's right to a fair trial

Introduction. The article examines the question of the questioning of anonymous witnesses, the use of their testimony at the stage of the trial in the context of the suspect’s or accused’s right to a fair trial. The criteria that allow to make a decision on granting anonymity to a witness in criminal proceedings are defined and three categories of anonymous sources are distinguished, such as statements of absent witnesses, statements of anonymous witnesses, statements of hidden or classified witnesses. Summary of the main results of the study. The author refers to the criteria developed by the practice of the European Court of Human Rights on the issue of both the participation of anonymous witnesses during the trial and the use of the testimony of absent witnesses, which will ensure the fairness of the trial. Based on the practice of the ECtHR, three categories of anonymous sources have been identified, the testimony of which the ECtHR should consider as sources of evidence, and, accordingly, give them an assessment: they include: absent witnesses, anonymous witnesses, hidden or classified. Balancing factors that should allow for a fair and proper assessment of the credibility of evidence obtained from absent, anonymous, hidden or classified witnesses are given in order to prevent violations of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms. Conclusions. The legislation of European countries allows investigations to be carried out with the help of anonymous sources. Considerable attention is paid to this issue in the normative acts of the European Union, in particular in the Convention on the Protection of Human Rights and Fundamental Freedoms, the Committee of Ministers of the Council of Europe, decisions of the ECtHR, etc. This is relevant from the point of view of the formation of domestic criminal procedural practice, since it clearly and consistently establishes the standards of admissibility as evidence from such witnesses, creates guarantees that national courts will observe the right of the accused to a fair trial on the one hand, and for anonymous witnesses - the right to safety - on the other hand.

Normative and legal regulation of the questioning of medical workers as witnesses in criminal proceedings: problems of the conceptual apparatus

This article examines the terminological problems of legal regulation of the questioning of medical workers as witnesses in criminal proceedings. For this purpose, the criminal procedural norms regulating the questioning of a medical worker in the status of a witness, as well as the provisions of the Civil Code of Ukraine, the Fundamentals of Ukrainian legislation on health protection, and secondary regulatory legal acts (Rules for prescribing prescriptions for medicinal products and medical products, Instructions on the work of departments (groups, sectors, senior inspectors) monitoring the execution of court decisions of penal institutions and remand prisons, the Procedure for the provision of medical care to those sentenced to imprisonment, the Rules of Internal Procedure of remand prisons of the State Criminal Enforcement Service of Ukraine).
 It was established that Clause 4, Part 2, Art. 65 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Procedure Code of Ukraine) of medical workers 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, which constitute a medical secret, it is not allowed to be questioned as witnesses. In such a case, interrogation is possible on the condition that the medical worker is released from the obligation to keep professional secrecy by the person who entrusted them with this information, to the extent determined by him.
 It was found that, as of today, in Ukrainian legislation, the term «medical worker» is contained in several subordinate legal acts, and their content is not the same; the term «medical secrecy» is not formally defined, and such a component of the term «medical secrecy» as «intimate and family aspects of a person’s life» is not defined either in the criminal procedural law or in any other regulatory legal acts.
 Conclusions were made about the need to improve the conceptual apparatus in terms of regulating the questioning of medical workers as witnesses by unifying and specifying the terms «medical worker» and «medical confidentiality», as well as making changes to Clause 4, Part 2 of Art. 65 further - CCP of Ukraine.

Specific issues of the legal status of denunciators

Purpose. The purpose of the work is to analyze the current legislation regarding the legal status of denunciators and determine the extent to which the legal positions of various legislative acts coincide on this matter. Methodology. The methodology includes a comprehensive analysis and generalization of the existing scientific and theoretical material, as well as the formulation of relevant conclusions and recommendations. The following methods of scientific knowledge were used during the research: terminological, logical-semantic, functional, systemic-structural, and logical-normative. Results. In the process of the research, it was determined that denunciators, as participants in criminal proceedings, emerged in the national legal field due to amendments to anti-corruption legislation. These changes affected the conceptual apparatus, denunciators’ ways and means of informing about possible facts of corruption or corruption-related offenses were identified, denunciators’ guarantees of the legal status were introduced, specific measures for the protection of both denunciators and their close associates were implemented, and the powers of the National Agency on Corruption Prevention regarding cooperation with denunciators and the protection of their interests were expanded. However, certain provisions of anti-corruption legislation, particularly the Law of Ukraine On Prevention of Corruption regarding the legal status of denunciators, and specific provisions of the Criminal Procedure Code of Ukraine regarding the procedural status of denunciators as participants in criminal proceedings, require coordination and improvement. Scientific novelty. In the process of research, it was established that the concept of a denunciator provided by the Law of Ukraine On Prevention of Corruption is somewhat narrower than the analogous concept provided by the Criminal Procedure Code of Ukraine, that in certain cases, may hinder the usage of the full range of protection measures and guarantees for denunciators stipulated by the current legislation. Additionally, it was established that the procedural statuses of a denunciator and a witness in criminal proceedings may not be fully reconciled due to certain inconsistencies between the scope of rights of denunciators regulated by the Law of Ukraine On Prevention of Corruption and the Criminal Procedure Code of Ukraine, respectively. Practical significance. The results of the research can be used in law-making and law-enforcement activities during pre-trial investigations of corruption offenses and offenses related to corruption.

Problems Using the Anonymous Witness

The article examines the procedural issues of using anonymous witnesses in national legislation and international Law. The study aims to improve the scientific and practical foundations for using anonymous witnesses. The countries' legislation allows exceptions from the direct examination of evidence in court, and anonymous witnesses should also be attributed to these exceptions, fulfilling specific requirements defined in the case law of the ECHR. The term “pseudonym” should be enshrined in the CPC governing the participation of an anonymous witness in criminal proceedings. A pseudonym must meet the requirements of anonymisation and exclusion of identification and be distinguished by reliability. There may be cases when a pseudonym is chosen by a witness who, when selecting, cannot subconsciously choose a surname and letters that he often used, which increases the risk of recognising the witness. During the trial, anonymous witnesses are usually located in a particular room for witnesses under a pseudonym. They remain invisible to the participants in the process but also to the court. This circumstance deprives the court of verifying the voluntariness of testimony and the absence of pressure on the witness. Various ways induce a witness to perjury and give the necessary testimony. Anonymising a witness may also arise after they have given evidence in the usual manner. Laws that allow anonymous witnesses do not consider the court's right to verify the testimony's circumstances, the voluntariness of the testimony and the absence of pressure on the witness. Classifying witnesses is regulated mainly by subordinate acts for official use. The method of classifying witnesses should be held by a particular law or supplemented by the CCP governing the use of anonymous witnesses. The court should have the right to check the voluntariness of testimony and the absence of pressure on a witness to give false testimony.

Perlindungan Hukum Terhadap Notaris Dalam Melaksanakan Rahasia Jabatan Terhadap Akta Yang Dibuatnya Terkait Sengketa Internal Para Pihak Di Pengadilan

A notary is a public official who is only authorized to make an authentic deed regarding all actions, agreements, and stipulations required by general regulation or by an interested party who is required to be stated in an authentic deed, guarantees the certainty of the date, keeps the deed, and gives Grosse, copies, and the quotation, as long as the making of the deed by general regulation is not assigned or excluded to other officials or people. This research uses Philipus M. Hadjon's legal protection theory and Sudikno Mertokusumo's legal certainty theory. The normative juridical study uses literary or secondary data from primary, secondary, and tertiary legal sources. The Statute Approach, Conceptual Approach, Analytical Approach, Case Approach, and the method of identifying and inventorying positive legal rules, literature, books, journals, and other legal sources are utilized for research. Analyzing legal documents involves legal interpretation, systematic interpretation, and legal construction. The study found that a Notary is a public authority who facilitates community legal actions. The Law on Notary Positions encompasses most legal ties in society. Protection and legal certainty for Notaries summoned as witnesses in criminal proceedings, notably on their obligation to keep their positions secret. As said earlier, a Notary is a trusted position that must be kept hidden.

Legal regulation of recording criminal proceedings in martial law

The article is devoted to the study of the legal regulation of the recording of criminal proceedings in martial law. In the course of the problem it is pointed out that an important place among the regulations governing the procedure of criminal proceedings in martial law is occupied by legislative provisions that regulate the specifics of recording criminal proceedings. It is noted that the conduct of hostilities complicates the use of «normal» forms of recording criminal proceedings. During the coverage of the state of elaboration of the relevant issues, it is noted that the subject of the study of scientists were only general issues of legal regulation of the fixation of the criminal process in martial law. Scholars have not focused on the study of the legal regulation of the recording of criminal proceedings carried out in a situation of hostilities. During the presentation of the main material it is emphasized that the existing legal regulation of fixing the decision to initiate criminal proceedings during martial law is imperfect, because the current procedural rules may adversely affect the effectiveness of criminal proceedings at the initial stage of the investigation. It is determined that during martial law the legal regulation of recording the decision to initiate a pre-trial investigation by drawing up a resolution is superfluous, as this formality, even ex post facto, involves unjustified spending of pre-trial investigation resources. It is emphasized that the legal regulation of mandatory technical recording of all criminal proceedings, if there is a real possibility, along with paper (protocol) recording in full during martial law is considered quite controversial. It is stated that the procedural norms should contain provisions on the simplified, alternative fixation of the special procedure of criminal proceedings due to the legal regime of martial law. It is argued that the simplification and variability of the recording of criminal proceedings under martial law should be determined by the balance between paper and technical forms of recording. Emphasis is placed on the legal regulation of the peculiarities of the participation of witnesses in criminal proceedings during the martial law regime.

Institute of witness in criminal proceedings: problematic issues that arise during the pre-trial investigation and trial.

Institute of witness in criminal proceedings: problematic issues that arise during the pre-trial investigation and trial.

Civil-Resistance Videography as Human Rights Practice: The Non-Survivor Testimony and the Striving for Criminal Jurisdiction in Syria and Beyond

Abstract This paper brings together the legal discourse on user-generated evidence and a media-cultural study focus to explore videography in conflict contexts as human rights practice. Through examples of civilians and activists who have recorded, documented, and shared atrocities and human rights violations during the Syrian conflict with the help of mobile and social media, the conceptional challenges arising from this human rights practice are explored to further the understanding of witnessing and testimony in the presence of mobile and social media. While Syrians engage in the life-threatening endeavour of recording atrocities and human rights violations to bring justice to perpetrators and victims alike, their video clips contain often only little probative value in juridical terms. Still, current human rights initiatives exist that aim to introduce such user-generated evidence into international criminal proceedings with the support of witnessing apps. To understand the material-semiotic practices that underlie such initiatives, civil-resistance videography is introduced as connected to a broader debate on eye-witnessing, testifying, and providing legal evidence of atrocities and human rights violations that links back to the Eichmann trial and the advent of the survivor witness in criminal proceedings. Applying an analytical approach that combines the feminist understanding of diffraction, interference, figuration, and ethnography, the survivor witness is read as a testimonial figure that interferes with the emerging figure of the non-survivor witness in the context of civil-resistance videography. This interference brings forward the figuration of the non-survivor testimony that requires a conceptional rethinking in the legal and socio-political discourse on user-generated evidence.

Interrogation of minor and juvenile witnesses in criminal proceedings: Current state and prospects for improvement

The relevance of the study is determined by the need to improve the procedure for obtaining information provided by minors and juvenile witnesses during interrogation regarding the circumstances known to them in criminal proceedings at the litigation stage, while ensuring the best respect for the children's interests. The authors employed philosophical, general scientific, and special scientific methods of cognition, which allowed conducting a detailed analysis of the procedure for interrogating minor and juvenile witnesses at the litigation stage. To develop scientific proposals for improving the legislative regulation of the interrogation of minor and juvenile witnesses during the litigation, the study defined the principles of child-friendly justice that must be observed during this procedural action, as well as the guarantees stipulated by the Criminal Procedural Code of Ukraine and aimed at implementing international standards for ensuring the rights of minors in criminal proceedings. The authors of this study state that the legislative definition of requirements imposed separately on the teacher, psychologist, and doctor involved in the interrogation of minor or juvenile witnesses, as well as the procedure for involving such persons by the court and the pre-trial investigation body, would considerably improve the quality of the required aid to minor witnesses and would meet international standards. The study analyses the international practices concerning the introduction of the institution of representation in the litigation of pre-recorded testimony of minors and juvenile witnesses. The authors established that the introduction of such an institution is absolutely justified and will have an exceptionally positive effect both for minor and juvenile witnesses, as well as for the process of proof, and can be implemented in Ukrainian legislation. Scientific proposals have been developed to improve the legislative regulation of the interrogation of minor and juvenile witnesses during court proceedings

Against witnesses in criminal proceedings of the Russian Federation

Against witnesses in criminal proceedings of the Russian Federation

Testimony of a witness in criminal proceedings

Testimony of a witness in criminal proceedings

СПЕЦИАЛИЗИРОВАННЫЕ ГОСУДАРСТВЕННЫЕ СУБЪЕКТЫ ПРЕДУПРЕЖДЕНИЯ ЛЕГАЛИЗАЦИИ ИМУЩЕСТВА, ПОЛУЧЕННОГО ПРЕСТУПНЫМ ПУТЁМ/SPECIALIZED STATE SUBJECTS OF PREVENTION OF LEGALIZATION OF PROPERTY OBTAINED BY CRIMINAL MEANS/ՀԱՆՑԱՎՈՐ ՃԱՆԱՊԱՐՀՈՎ ՍՏԱՑՎԱԾ ԳՈՒՅՔԻ ՕՐԻՆԱԿԱՆԱՑՄԱՆ ԿԱՆԽԱՐԳԵԼՄԱՆ ՄԱՍՆԱԳԻՏԱՑՎԱԾ ՊԵՏԱԿԱՆ ՍՈՒԲՅԵԿՏՆԵՐԸ

The article examines the system of specialized state entities for preventing the legalization of property obtained by criminal means (money laundering) operating in the Republic of Armenia (RA), their structure, functions and powers. No research on this topic has been published in our country before. We think that the specialized state entities that provide anti-money laundering in the RA are: the central bank, reporting entities, internal monitoring bodies, the RA interagency commission on the fight against money laundering, terrorism financing and financing the proliferation of weapons of mass destruction, the National Security Service, the police, Special Investigation Service, Anti-Corruption Commission, Investigative Committee, State Revenue Committee and RA prosecutor's office. From the point of view of compliance with international standards for combating the legalization of property obtained by criminal means and the legislation of the Republic of Armenia, the provisions of the charter of the financial intelligence unit-financial monitoring center of the central bank of the Republic of Armenia, related to the prohibition of interrogating its employees as a witness in criminal proceedings, are also considered․

Ochrona małoletniego świadka w postępowaniu karnym - wybrane aspekty

Artykuł prezentuje niezwykle ważną problematykę przesłuchania w charakterze świadka małoletniego niebędącego pokrzywdzonym. Niewątpliwie wprowadzenie w 2003 r. przepisu art. 185a k.p.k. stanowiło krok milowy w zakresie ochrony pokrzywdzonego dziecka jako świadka w postępowaniu karnym. Celem artykułu jest zbadanie zakresu ochrony małoletniego świadka niebędącego pokrzywdzonym w toku postępowania karnego. Autorka przedstawia niektóre osiągnięcia oraz niedociągnięcia regulacji polskich w tym zakresie i na ich tle przedstawia postulaty de lege ferenda.

On the issue of the necessary establishment of special conditions for interrogating a person with mental disabilities as a witness in criminal proceedings

The article presents the study of debatable issues of legal regulation of conditions for interrogating a person with mental disabi -lities as a witness in criminal proceedings, as well as the substantiation of the basic principles for the relevant draft norm.This problem is caused by the fact that national criminal procedural legislation of Ukraine does not contain a specific mechanismthat would be the basis for assessing the results of interrogating a person with mental disabilities as a witness.In particular, the Criminal Procedural Code of Ukraine enumerates persons who cannot be interrogated as witnesses. The relevantgrounds allow an investigator, prosecutor, investigating judge, or court to decide not to interrogate a person who is aware or may beaware of the circumstances to be proved in criminal proceedings. At the same time, the forensic expert findings on this person’s abilityto perceive the facts cannot be taken into account in order to assess the reliability of the testimony of a witness with mental disabilities,and such an expert examination in criminal proceedings cannot be prescribed.As a result, preconditions are formed for investigative and judicial errors, violation of rights and freedoms of citizens and legi -timate interests of individuals and legal entities, which is obviously unacceptable for the modern legal, social, and democratic stateUkraine seeks to become.The controversial issues on special conditions of interrogating a person with mental disabilities as a witness in criminal proceedingshave been studied in the context of scholarly analysis of the provisions of modern national criminal procedural legislation, historicalexperience, and relevant norms of foreign criminal procedure.As a result of the research, a proposal to amend the criminal procedural legislation in force is developed and substantiated. Inparticular, it is proposed to supplement the criminal procedural legislation of Ukraine with a norm on mandatory prescription of anexpert examination to establish the mental condition of a witness in case of doubt about the ability of this person to correctly perceivethe circumstances, relevant to criminal proceedings, and testify about them.

PROHIBITION OF INTERROGATION OF A CLERGYMAN AS A WITNESS IN CRIMINAL PROCEEDINGS

The article deals with the prohibition of interrogating a clergyman as a witness in criminal proceedings and releasing him from his duty of professional secrecy.Since, according to church norms, clergy are forbidden to divulge the secret of confession, it is proposed to change the wording of part 3 of Article 65 of the Criminal Procedure Code of Ukraine. It is reasonable to exclude from this provision the possibility of exempting clergy from the obligation to keep confidential the information obtained by them in the confession of believers.The introduction of the amendments proposed by the author and amendments to the current criminal procedural legislation of Ukraine will allow to regulate properly the issue of prohibition of interrogation of a clergyman as a witness in criminal proceedings.Key words: professional secrecy, clergyman, confession secret, confession of believers, interrogation of a witness, witness immunity.

Tajemnica kontrolerska uregulowana w art. 61 z ustawy z dnia 27 sierpnia 2004 r. o świadczeniach opieki zdrowotnej finansowanych ze środków publicznych jako przykład nowej tajemnicy zawodowej w postępowaniu karnym oraz obowiązek denuncjacji

This study is a voice about the controlling secret of employees of the National Health Fund. This is a new professional secret that has emerged in legal transactions since 1 June 2019. The main emphasis was placed on the obligation to denounce and appear as a witness in criminal proceedings. The subject, subject and temporal scope of the controller’s secret were analyzed in the paper. Questions were also asked which, when the provisions on the controller’s secret are practically applied, will get their answer.

Unakrsno ispitivanje svedoka u krivičnom postupku

This paper analyses the cross-examination of witnesses in criminal proceedings, mentioned first in the Constitution of 2006 and finally introduced into our legal system by the Code of Criminal Procedure of 2011. This concept of examination implies the right of a party party to criminal proceedings to examine a witness proposed by the other party. As this phase of examination of witnesses is typical for adversarial model of criminal proceedings, the paper explains the basics of witness testimony in adversarial, but also in the mixed type of criminal proceedings, followed by explanation of the characteristics of the criminal proceedings in our country, with reference to the present Code of Criminal Procedure. In order to grasp this problem in full, the paper deals with the concept of witnesses in criminal proceedings as well as the cross-examination of the witnesses, through the most important domestic and international legal sources. Lastly, the goals and types of cross-examination of witnesses are explained and practical advice for examiners is given.

ІМУНІТЕТ СВІДКІВ ЯК ЕЛЕМЕНТ ПРИНЦИПУ ОХОРОНИ ПРАВ І СВОБОД ЛЮДИНИ І ГРОМАДЯНИНА У КРИМІНАЛЬНОМУ СУДОЧИНСТВІ

In the conditions of formation of the rule of law, one of the biggest manifestations of the democratization of law enforcement activity in Ukraine is the legislative protection of human rights, the creation of guarantees of the rights and legitimate interests of the individual. In this regard, the legal status of participants in criminal proceedings becomes especially important. In addition, the important task of criminal procedural science is to identify and eliminate gaps in the legal regulation of criminal procedural relations. In this regard, studies are currently being conducted to identify legal issues in the field of law and recommendations are being prepared on this basis. It is known that every participant of criminal justice has its own legal status, enshrined in the rules of the Criminal Procedure Code of Ukraine. The procedural status of the victim, suspect, accused legislator and procedural scientist are given much attention, including the issues of securing their rights and legitimate interests. The procedural status of a witness in criminal proceedings requires, in our opinion, additional investigation, including through the prism of securing the rights and legitimate interests of the person in conducting pre-trial investigation and judicial proceedings in criminal proceedings. Research into the problems of the theory and practice of witness immunity is relevant, as various aspects of witness immunity are controversial among both theorists and practitioners. Of course, it is, first and foremost, important for witnesses to have additional opportunities for state defense. The purpose of the article is to address topical issues arising from the reform of criminal procedural legislation, which has created some difficulties in law enforcement practice, including the implementation of the rules governing the institution of immunity of witnesses. In particular, this is explained by contradictory, sometimes unsuccessfully formulated provisions of the legislation itself, which are not always consistent with the implementation of the tasks of judicial reform. In addition, the article raises the problem of witness immunity classification. The authors' different perspectives on the concepts and components of witness immunity are examined. Discussion questions of the classification of the immunity of witnesses are revealed and its classification is divided into categories and categories of testimony provided by witnesses. The result of the study is to provide valid proposals for improving the legal regulation of the institute of immunity of witnesses in criminal proceedings. Witness immunity is a set of rules that exempt certain groups of witnesses from the obligation to testify in criminal proceedings, as well as exempt a witness from testifying against themselves. In this regard, the immunity of the witness is divided into two types of imperative (absolute, unconditional) and dispositive (relative, conditional).

Trafficked women’s presentation of self before the German courts

The analysis in this article provides an alternative interpretation of trafficked women’s self-presentation before the courts. I use complete observations of German judges deposing women in camera who are witnesses in criminal proceedings against their traffickers. My objective is to develop and inform a different account of the women’s self-presentation by prioritising the narrative accounts of their ‘lived’ experiences of trafficking. Invoking Judith Butler’s analysis of the complex transactions between subjectification and subversive agency and emerging debates in the health arena in psychosocial theory on resilience, I ask: How is trafficked women’s self-presentation in criminal proceedings an expression of their agency and resilience?