Witnesses in a civil proceeding represent one of the sources of information on the basis of which the court examines the circumstances of the case and makes a decision.
Legislative regulation
In the Code of Civil Procedure, several articles are devoted to the witness: 69, 70, 170, 177, and 179. The first two relate to explanations of who the witness is, his rights and obligations. The rest describe the procedure for his interrogation at the hearing. The last article is about interrogating minors.
Who is inviting him?
A witness in a civil proceeding is invited either by the plaintiff or by the defendant. But not only. He is entitled to invite a third party. Most often, participants in the meeting are invited by the parties.
The legislation gives the court the right, if a witness does not appear, to apply measures of procedural coercion: drive, imposition of a fine. In fact, their appearance is provided entirely by the person who asks them to call. If the witness is not, the judge will inquire about the reasons and continue the process. In civil processes, the drive is not actually used or is extremely rare in exceptional cases.
However, depending on the meaning of the testimony, the judge may postpone the case or be satisfied with the testimony of those who have already been questioned before.
It is also possible that after studying the case materials that have already been collected, the parties' explanations, the representative of the court will not postpone the date of the meeting again in order to hear the witness.
In the event of an appeal review, the judge’s refusal to postpone the examination of the case because of the witness is recognized as legal, unless the reason for the failure to appear is considered valid.
Invitation procedure
One of the parties declares a desire to interrogate a witness. The statement shall indicate the information that this person can provide, his full details (full name, place of residence).
A request for a call may be filed with the claim or combined in one document. There are also nuances here.
If the request to call a witness in a civil proceeding is indicated in the lawsuit, it is placed in the petition.
In what form to apply?
You can file a separate application in the name of the judge, indicating the number of the case, which is not very convenient. If there is any doubt about the impartiality of the representative of the court, then the document should be submitted in advance through the office. Why? If you file the request orally, the only evidence of the appeal is the record of the hearing. There may simply not be a mark of a call in it. Thus, filing a written application serves as a guaranteed means of fixing your request.
And at the appeal stage, the judges will have no doubt that the declaring party did indeed ask to summon a witness to the civil proceedings.
And further. If the item on the call was present in the application to the court, then the request should still be voiced to the court. This is due to the fact that one of the principles of the civil process is orality.
Call to process
Having notified his appearance to the secretary, the plaintiff or defendant reports that he brought a witness with him.
Then the parties are invited to a judge, preparation for the trial begins, after which it is allowed to state their requests, in particular, a petition for a witness in a civil proceeding.
As a rule, employees agree with this.
Clarification of rights and obligations
A petition for a witness in a civil proceeding does not immediately mean a transition to interrogation. First, a new participant in the process is explained his rights and obligations.Especially with regard to criminal liability for false testimony or for refusing to give it.
The witness signs with his own hand on the form, confirming the explanation of the provisions on liability.
Witness rights
The rights of a witness in a civil proceeding are as follows:
- receiving monetary compensation for the time spent on arrival in court;
- interrogation at the place of his stay, in particular, due to treatment in a hospital;
- use during the testimony of records relating to numerical notes;
- refusal of testimony when prescribed by law.
If the witness lives in the same area where the court is located, then there is no problem with the arrival. If he lives far away, an order for his interrogation to the court at the place of residence is sent. Now the problem of remoteness began to be solved in a different way. Interrogation of a witness in a civil proceeding is carried out through the use of conference calls.
With its help, communication is provided between two courts, in one of which a witness is physically present, and in the other the proceedings are being conducted.
Legal refusal to testify
The law contains a list of persons who cannot be interrogated or interrogation is permitted only if they agree.
The first group includes:
- persons who participated in the case as a representative, defense counsel in criminal proceedings;
- mediators who participated in the reconciliation procedure;
- judges, jurors - regarding the issues that were discussed in the deliberation room;
- clergy about information that they became aware of at confession.
The ban works beyond the desire of the listed persons to inform the court of anything.
The following is a list of those who can testify if they consent:
- deputies about information that they became aware of in the course of fulfilling their duties;
- Commissioner for Human Rights in the Russian Federation;
- Commissioner for the rights of entrepreneurs at both the federal and regional levels;
- man in relation to himself;
- spouse in relation to spouse, parents in relation to children, children in relation to parents;
- adopted and adoptive parents in relation to each other;
- brothers and sisters in relation to each other;
- grandparents and grandchildren regarding each other.
Duties of the witness
The main responsibilities include:
- timely appearance in court;
- giving comprehensive, truthful evidence.
The consequences of failure to appear were discussed above.
Thus, the application for a witness was not denied in the civil proceedings, but the result would not be beneficial to the party who had declared the interrogation.
Interrogation Procedure
Witnesses are summoned and interrogated one by one. Before the interrogation begins, the nature of the relationship between the witness and the parties to the process is clarified. This gives the judge the opportunity to assess how true the testimony.
Initially, the interrogated person is requested to provide all known information about the circumstances of the case.
Further, the plaintiff or defendant, looking who called the witness, ask questions. The process does not end there. After asking questions is allowed to the second side. The judge has the right to interfere with the interrogation at any time.
The witness is left in the courtroom. If there are contradictions with the testimonies of other persons or with the case file, a new interrogation is carried out.
The testimony of witnesses in a civil trial should consist only of information the source of which he can report. For example, he personally saw what was happening or heard what he was talking about.
If the witness cannot explain exactly where the information came from, they are not accepted by the court.
Assessment of indications
The testimony of witnesses can vary widely. There are two reasons for this: either a lie or an individual's perception of a person.
It should be noted that people are attracted only for knowingly false testimonies. This means that the witness deliberately distorted the real events in his story.
Most often, the testimony does not correspond to what happened because of a number of reasons: excitement (not every day people come to court, where the situation is not very pleasant), features of memory, thinking. In addition, sometimes a lot of time passes between the events and the court session.
Thus, the judge’s task is to find out how correctly a person perceives reality, whether his memory works well, to what extent he correctly reproduces what he heard and saw.
If there is no obvious lie in the evidence, the representative of the court critically evaluates the evidence, motivating and justifying the reasons for their rejection.
Features of interrogation of minors
Interrogation of a child has its own characteristics. First of all, they only explain to him the need to tell the truth, while his prosecution is excluded. Accordingly, receipts of responsibility are not taken from him.
The judge has the right to interrogate the child without the presence of adults, whom he has the right to remove from the court at his discretion. We are talking about those who embarrass the interrogated, scare him or otherwise negatively affect the fact of their presence.
As a rule, the judge is interested in the child, whether to remove someone specifically or all in order to conduct a conversation.
If the child is less than 14 years old, one of the teachers or another teacher must be present.
In practice, people from an educational institution where the interrogated learns are invited to do this, if for some reason the parents are not present at the interrogation, or they are interested in the result of the process.
After the interrogation, if someone is removed, he is invited to the hall and the contents of the testimony are reported there.