In the recent past, “non-unitary practice” or “ambiguous legislation” are some of the phrases occurring ever more often in discussions on the “witness’s right” to be assisted by a lawyer, in particular during the hearings in the prosecution stage.
And that because even if the fundamental Law guarantees any person’s right of defence, the criminal law makes no specific provision that the witness may be assisted by a lawyer.
Ambiguous Legislation! or Ambiguous Legislation?
According to the general provisions of the Criminal Procedure Code, the lawyer assists or represents the parties or the procedural subjects according to law, and the chapter on legal assistance and representation provides that during the criminal proceedings, the lawyer assists or represents the parties or the main procedural subjects according to law.
The parties to the criminal proceedings are the defendant (the main character of the criminal proceedings), the civil party and the civilly liable party. The main procedural subjects are the suspect and the aggrieved party.
Together with the expert, the interpreter, the process server and the special ascertaining authority, the witness belongs to the category of “other procedural subjects”. In respect of such category, the criminal law includes no specific provision about the right to be assisted by a lawyer.
Assisting the witness during the prosecution stage
The prosecution body may be seized based on a complaint or a report, or based on the documents drafted by other ascertaining authorities. The prosecution body may also start action at their own initiative.
According to the legal provisions, if the document instituting the proceedings meets the requirements provided by law, prosecution is started in relation to the committed deed, even if the author is known or specified. This first stage of the prosecution, which concerns exclusively the deed (“in rem”), is the beginning of the criminal proceedings.
The next phase of the criminal proceedings – in the prosecution stage - is started when the existing evidence supports a reasonable suspicion that a certain person committed the deed causing the criminal prosecution initiation. The criminal prosecution body will issue an ordinance, ordering that the criminal prosecution be conducted against that specific person (“in personam”), who will become a suspect.
In the absence of express legal provisions, in both trial stages the prosecutor will, on a case by case basis, decide if the witness may be assisted by a lawyer.
Express regulations on the witness’ rights
In general lines, the witness only has the right to tell the truth, and to tell all they know in order to prove the deeds and circumstances at issue, other than the circumstances whose secrecy or confidentiality may be legally relied upon against the judicial bodies.
Moreover, the criminal law affords the witness the right not to self-incriminate through their testimony before the judicial bodies.
The only categories of persons who may refuse to testify as a witness without any risk to incur punishment under the criminal law are the suspect’s or the defendant’s lineal ascendants and descendants, siblings, spouses or former spouses.
Mircea TEIS, Senior Associate Specialising in Criminal Law with Țuca Zbârcea & Asociații