The Role of Witnesses in Criminal Proceedings. Rights and obligations. 

     In criminal proceedings, the collection of oral evidence necessitates the mandatory participation of witnesses in the criminal proceedings. Oral evidence gives effect to the principle of immediacy, creating the conditions for uncovering both the objective and subjective truth in the judicial proceedings.   

     The provisions of the Criminal Procedure Code (CPC) regulate the procedural status of the witness in criminal proceedings. Articles 118–123a specify the limitations on the admissibility of testimony, as well as the rights, obligations, and safeguards for the protection of witnesses. Based on the body of evidence, including oral testimony, the court forms its internal conviction when rendering the final judicial decision. This regulatory framework raises the question of balancing the obligation of witnesses to cooperate with the administration of justice and the guarantee of their rights. This article aims to outline the rights and obligations of witnesses in criminal proceedings and to analyze the issues related to their practical application.

A witness has the right to refuse to testify on matters whose answers would incriminate either the witness or his or her ascendants, descendants, brothers, sisters, spouse, or a person with whom the witness is in a de facto cohabitation. The law allows a witness to refuse “to be questioned regarding circumstances that were entrusted to him as a defense attorney or legal representative, or that became known to him as an interpreter during meetings between the defendant and the defense attorney.”

A witness has the following rights: to use notes; to receive compensation in cases where, due to being summoned, he or she was unable to report to work; to request reimbursement of expenses incurred in connection with the criminal proceedings; to appeal acts affecting their rights and legitimate interests; to appear and consult with a lawyer during questioning. When there are sufficient grounds to believe that the witness’s life or health may be endangered as a result of their testimony, the prosecutor or judge, at the witness’s request and/or with their consent, may take measures for both the witness’s temporary, immediate protection and the protection of persons in close relationship with the witness. Protection of the witness and their close circle is implemented to keep the witness’s identity confidential. This is achieved both by providing physical security for the witness and their relatives and by enrolling them in a protection program under the Law on the Protection of Persons Cooperating in Criminal Proceedings. In certain cases, special investigative measures may also be used to protect the property, life, and health of witnesses and their close relatives.

When employees or their relatives who have worked undercover are questioned as witnesses, the legislature has provided for measures to mitigate risks in order to ensure their safety and the secure performance of their official duties. 

     In cases where witnesses have protected status, are located outside the country, or where other specific circumstances exist, the examination may be conducted via videoconference or teleconference.      

To ensure procedural rights and the protection of persons with specific needs, a specially equipped room may be provided for the examination. An interpreter is provided for participants in criminal proceedings who do not speak Bulgarian, and a sign language interpreter is provided for persons with hearing or speech impairments.  

The questioning of minor witnesses shall be conducted in the presence of an educator or psychologist, and, if necessary, in the presence of a parent or guardian. At the request of a witness who is a victim of a crime committed in the context of domestic or sexual violence, the questioning may be conducted by a person of the same sex, provided that this does not impede the effective conduct of the criminal proceedings 

     Witnesses are required, upon being summoned, to appear before the competent authority to give full, truthful, and reliable testimony in a free account of the facts and circumstances known to them and to remain at the disposal of the summoning authority until the conclusion of the investigation.  

  A witness who fails to appear for questioning at the designated place and time to give testimony shall be brought before the court by force in cases where his or her appearance is mandatory or where the competent authority deems it necessary. If the witness is unable to appear due to illness or disability, he or she may be questioned at the location where he or she is present. If a witness fails to appear for questioning or refuses to testify, a fine may be imposed on them. The imposition of sanctions may be revoked if the witness provides a valid reason for their failure to appear. A refusal to revoke an imposed sanction is subject to appeal in accordance with the procedure provided for in the Penal Procedure Code. The spouse, ascendants and descendants, brothers and sisters of the accused, as well as the person with whom the accused is in a de facto cohabitation, have the right to refuse to testify in criminal proceedings.

  In order to ensure fairness and the reliability of the facts and circumstances presented in criminal proceedings, the legislature has introduced explicit prohibitions on the status of “witness” for persons who, due to physical or mental impairments, are unable to perceive and provide reliable testimony regarding the alleged offense. The following categories of persons are exceptions to the general principle: the defendant against whom the criminal proceedings have been concluded, the private prosecutor, the victim, the civil claimant, and the civil defendant.

   Witnesses in criminal proceedings also include witnesses and employees of the relevant competent authorities who were present during the conduct of procedural and investigative actions, as well as persons who carried out investigative or judicial-investigative actions, including during the conduct of preliminary interviews.

Witness testimony must consist of facts observed firsthand. Testimony based on hearsay has lower probative value or is inadmissible. On the other hand, a defendant’s conviction cannot be based solely on the testimony of anonymous witnesses or undercover agents. 

 In accordance with the practice of the European Court of Human Rights (ECHR), the assessment of testimony must guarantee the right to a fair trial, including the opportunity to challenge the testimony of witnesses whose testimony is decisive for the prosecution.

 This article examines some aspects of the topic and does not represent full analysis of the problem.   

 Author: Petya Stoevska, Dr. Sc