With the entry into force of the current criminal procedural regulation, it became customary for criminal prosecution bodies to deal with anyone against whom a complaint or accusation was made in the capacity of witness.
Therefore, despite indications of the perpetration of a criminal act by a certain person, and despite the document instituting proceedings meeting the requirements set forth by law, criminal prosecution bodies usually question the perpetrator as a witness, without starting the criminal prosecution in personam against him.
Consequences of hearing “the perpetrator” as witness
Although one could claim that this practice rests on the benefit of the doubt, “the perpetrator” heard as a witness usually finds himself in an unspecific procedural position giving rise to a set of unfavourable consequences for him.
If he refuses to make any statements or answer questions from criminal prosecution bodies, thereby avoiding self-incrimination, the witness commits the offence of giving false evidence.
If he makes statements before the criminal prosecution bodies of criminal aspects that lead to self-incrimination, the witness exposes himself to the risk of being prosecuted. It is true that a witness’s right not to give evidence about acts that could incriminate him arises from the generally admitted principle, the essence of any fair trial, which is the right not to contribute to one’s own incrimination; nevertheless, even if it may not be used against him, the witness statement is not removed from the case file.
This mechanism results in the indictment of the person heard as a witness, either for the offence of giving false evidence, or the offence made known to the prosecution bodies through the self-incriminating statement.
Witness’s obligations vs. suspect’s rights
Unlike a suspect, a witness does not enjoy the right not to make any statements throughout a criminal trial, but is legally obliged to tell the truth.
Similarly, a witness has no legal right to access the case file, while criminal prosecution bodies often do not allow a witness to be assisted by an attorney, even if there are indications he was involved in the perpetration of a criminal act.
A potentially equitable procedural approach of the criminal prosecution bodies
If, during the hearing, the witness presents facts or aspects that could result in his incrimination, the criminal prosecution body, with a view to not breaching the principle of the right to a fair trial, shall halt the hearing and inform the witness of his right to refuse to continue the statement.
For the above reasons, assistance provided by an attorney to an alleged witness throughout the hearing may represent an effective guarantee of compliance with the latter’s procedural rights
Alexandru GOGONEAȚĂ, Associate Specialising in Criminal Law with Țuca Zbârcea & Asociații