Witnesses in civil proceedings: features of interrogation and involvement in the case

Who invites him?

A witness in a civil trial is invited either by the plaintiff or the defendant. But not only. A third party has the right to invite him. Most often, participants in the meeting are invited by the parties.

The legislation gives the court the right to apply procedural coercive measures if a witness fails to appear: arrest, imposition of a fine. In fact, their appearance is ensured entirely by the person who asks to summon them. If the witness does not appear, the judge will inquire about the reasons and continue the process. In civil proceedings, the drive is not used in reality or is used extremely rarely 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 earlier.

It is also possible that after studying the already collected materials of the case and the explanations of the parties, the representative of the authority will not postpone the date of the hearing again in order to listen to the witness.

In the case of an appeal hearing, the judge’s refusal to postpone the consideration of the case because of a witness is recognized as legal, unless the reason for failure to appear is considered valid.

Summons for interrogation

If the request to summon the citizen whom you wish to interrogate is granted by the court, the consideration of the case is postponed to another date (except for the situation when his appearance has already been ensured in advance and the interrogation can begin immediately).

Question: How is a potential witness notified?

Answer : As a general rule, a subpoena, which indicates the time, place (which court, its address) and date of the court hearing.

This subpoena can be taken for personal delivery; this is permitted by law. If you do not want to undertake the obligation to serve a subpoena, the court cannot “force” you to notify the citizen; the delivery of a notification to him by a party is possible only with the voluntary consent of this party.

The court has the right to send a summons by regular or registered mail (by the way, in the petition you can focus on this and ask to send a registered letter). In some cases, witnesses may be called by telephone or telegram, as well as by fax. Prompt notification of a person about his appearance is SMS information, which has recently been increasingly used by the judiciary. It should be noted that in order to use this method of notification, the judge must have the written consent of the citizen to send messages to him.

Example No. 4 . Witness I.P. Ryabov was summoned to the court hearing on property inheritance, who in good faith appeared in court on a subpoena, testified and signed consent to notification by sending him SMS messages. Subsequently, the court came to the conclusion that it was necessary to re-interrogate I.P. Ryabov. Since there was agreement from him, the date of appearance of the next meeting of Ryabov I.P. notified by SMS message to the phone number.

In the event that it is necessary to summon a minor, his parents are notified of the date of the hearing, in whose presence the interrogation will subsequently take place.

When a subpoena is sent to a witness, procedural documents (a copy of the statement of claim, objections, etc.) are not sent, unlike the parties to the case, to whom all this should be sent.

Invitation procedure

One of the parties declares a desire to question the witness. The application indicates the information that this person can provide, his full details (full name, place of residence).

The petition for summons may be filed together with the claim or combined in one document. There are also nuances here.

If a request to call a witness in a civil proceeding is indicated in the claim, it is placed in the pleading part.

You have been called: how to behave

Let's say you are a witness in a criminal case. Here are some practical tips on how to behave during interrogation in court:

1. First, don't ignore the challenge. It will not be very pleasant when there is a knock on your door at 7 am - bailiffs try to bypass the addresses indicated in the arrest order as early as possible. It is your civic duty to appear and testify.
2. It happens that the proceedings are postponed without starting (for example, representatives of one of the parties fall ill). Then you need to find out from the assistant judge the date of the next court hearing and receive a summons.
3. Usually the person being called knows in advance under what circumstances they want to interrogate him. Try to remember well the events related to the crime in order to answer the questions posed as accurately as possible. There is no need to invent or assume if you do not remember this or that detail. It’s better to answer honestly: “I don’t remember.”
4. Give your testimony confidently and clearly, provide only information that is relevant to the case. Do not focus on biographical information that is not related to the events of the crime.
5. Remember that the witness does not have the right to ask questions to the participants in the process and the court. At the same time, he has the right to submit requests of various nature related to the procedural order (for example, a request for a break due to poor health, a statement about pressure exerted on him by other persons, a request for payment of expenses, etc. ).

In what form should I submit my application?

You can submit a separate application addressed to the judge, indicating the case number, which is not entirely convenient. If there are doubts about the impartiality of the representative of the authority, then the document should be submitted in advance through the office. Why? If the request is submitted orally, the only evidence of the request is the minutes of the court hearing. There may simply not be a note about the call in it. Thus, submitting a written application serves as a guaranteed means of recording your request.

And at the appeal stage, the judges will have no doubt that the declaring party really asked to call a witness in the civil process.

And further. If the clause about summoning was present in the application to the court, then you still need to voice your request to the court. This is due to the fact that one of the principles of civil procedure is orality.

Conversation and interrogation

In some cases, the investigator may invite the witness to an informal conversation. When a witness is invited for interrogation, the investigator cannot conduct the conversation in this form, since he is on duty. In this case, any interrogation will constitute an investigative process during which information is collected for testimony.

Therefore, the witness cannot answer questions until they are recorded in the minutes of the court hearing. Since the answer to most questions depends on the correct formulation of the question, the investigator is obliged to ensure that clarity is established in the process under investigation.

The investigator must ask clear questions

Attention! The conversation format, in addition to the usual mental examination, allows investigators to waive the need to voice some questions during the court hearing when giving evidence. In addition, it is possible to construct questions at the court hearing in the required order.

If the investigator records only the witness's answers, then we can say that he is drawing up a draft protocol. During the trial, the witness's answers may change completely. Often witnesses completely forget the form of their answer that they pronounced at the beginning of the trial. Such circumstances do not allow a realistic assessment of the events that occur during the investigation.

It is best to move from informal conversation to formal interrogation. To do this, the witness must ask the investigator to indicate his legal rights. These actions require a receipt, so the investigator will have to start drawing up a protocol.

Most often, a formal interview is carried out, but an informal conversation is also possible.

Clarification of rights and responsibilities

A petition to involve a witness in civil proceedings does not mean immediately proceeding to interrogation. First, the new participant in the process is explained his rights and obligations. Especially with regard to criminal liability for false testimony or refusal to give it.

The witness signs the form in his own hand, confirming the explanation of the liability provisions.

No-show

If the summoned citizen fails to appear, the court will determine the reasons for the failure to appear. Usually the following are considered valid reasons:

• illness (of himself or his loved ones);
• death of relatives;
• pre-planned travel outside the city;
• work in another region (for example, on a rotational basis) and other circumstances that objectively indicate the impossibility of attending court.

If the valid reasons for repeated failure to appear are not established, the court may apply a summons, instructing bailiffs to deliver the person on the appointed day. In addition, the following sanctions may be applied to those who evade the call:

• a fine of up to 1000 rubles (in accordance with Part 2 of Article 168 of the Code of Civil Procedure of the Russian Federation);
• fine up to 2,500 rubles for citizens; a fine of up to 5,000 rubles for officials (in accordance with Articles 119, 157 of the Arbitration Procedure Code of the Russian Federation).
• fine up to 5,000 rubles for citizens; a fine of up to 10,000 rubles – for a municipal (state) employee; a fine of up to 30,000 rubles – for officials (in administrative cases, in accordance with the rules of Article 122 of the CAS RF).

Before using compulsory instruments, the court repeatedly ascertains from the participants the opinion of the need to interrogate the person who has not appeared. And only if it is objectively impossible to consider the case in his absence, the court calls the witness again. Of course, imposing fines and imprisonment are extreme measures used by the court in exceptional cases. By comparison, in criminal cases, orders for arrest are made by judges in almost every third case considered in the general procedure. In civil proceedings, cases of prosecution in one court can be counted in a few cases over a period of several years.

Witness rights

The rights of a witness in civil proceedings are as follows:

• receiving monetary compensation for the time spent coming to court;
• conducting an interrogation at the place of his stay, in particular due to treatment in a hospital;
• use of notes relating to numerical notes during testimony;
• refusal to testify when required by law.

If the witness lives in the same area where the court is located, then there will be no problems with arrival. If he lives far away, an order for his interrogation is sent to the court at his place of residence. Now the problem of remoteness has begun to be solved in a different way. The questioning of a witness in civil proceedings is carried out using a conference call.

With its help, communication is ensured between two courts, in one of which the witness is physically present, and in the other the trial of the case is being conducted.

Calling as a witness in criminal proceedings

In Art. 188 of the Code of Criminal Procedure of the Russian Federation clearly explains that a citizen can be summoned by means of a subpoena only for interrogation. However, if we take into account the interpretation of Sec. 26 of the Code of Criminal Procedure of the Russian Federation ( interrogation, confrontation, identification, verification of testimony

), it becomes clear that a subpoena can also summon a citizen to carry out other investigative actions.

Code of Criminal Procedure of the Russian Federation. Article 188. Procedure for summoning for interrogation

1. A witness or victim is summoned for questioning by a summons, which indicates who is summoned and in what capacity, to whom and at what address, the date and time of appearance for questioning, as well as the consequences of failure to appear without good reason. 2. The summons is handed to the person summoned for questioning against a signature or transmitted via means of communication. In the event of the temporary absence of a person summoned for interrogation, a subpoena is given to an adult member of his family or transferred to the administration at his place of work or, on behalf of the investigator, to other persons and organizations that are obliged to hand over the subpoena to the person summoned for interrogation. 3. A person summoned for questioning must appear on time or notify the investigator in advance of the reasons for failure to appear. In case of failure to appear without good reason, a person summoned for questioning may be brought in or other procedural coercive measures may be applied to him, provided for in Article 111 of this Code. 4. A person under the age of sixteen is summoned for questioning through his legal representatives or through the administration at the place of his work or study. A different procedure for calling for questioning is allowed only if it is caused by the circumstances of the criminal case. 5. The serviceman is summoned for questioning through the command of the military unit.

As in the case of subpoenas in a civil case, the method of notifying a witness of the need to appear is not limited to serving the subpoena against the signature of the citizen himself or a member of his family. The article also contains the notorious concept “ using means of communication

».

Legal refusal to testify

The law specifies a list of persons who cannot be interrogated or interrogation is permitted only if they consent.

The first group includes:

• persons who took part in the case as a representative or defense attorney in criminal proceedings;
• mediators who took part in the reconciliation procedure;
• judges, jurors - regarding issues that were discussed in the deliberation room;
• clergy about the information that became known to them during confession.

The ban operates regardless of the desire of the listed persons to tell the court anything.

Below is a list of those who can testify if they agree:

• deputies about information that became known to them in the course of performing 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 against spouse, parents against children, children against parents;
• adopted children and adoptive parents in relation to each other;
• brothers and sisters in relation to each other;
• grandparents and grandchildren in relation to each other.

Features of conducting a criminal case

A distinctive feature of conducting criminal cases is the division of all processes under consideration into the so-called “factual” and “in relation”. Taking into account the name, it can be understood that factual processes are considered in the case when a crime has actually been committed by someone.

Attention! Witnesses have exactly the same rights as the accused.

When the identity of the accused has been identified, a pre-trial investigation process is prescribed according to a certain legal procedure. In actual proceedings there are no suspects or accused. Another distinctive feature is the absence of a limit on the time allowed for the investigation.

An actual criminal case is initiated when a crime has already been committed

Therefore, the lion's share of criminal trials are carried out under the guise of factual cases, since it is already known who will have to answer for the act committed. The absence of restrictions is required in order to collect and provide evidence of the crime as completely as possible.

Attention! Ordinary procedural protections and civil rights for witnesses differ from those enjoyed by defendants.

Interrogation procedure

Witnesses are called and questioned one by one. Before the start of the interrogation, the nature of the relationship between the witness and the parties to the process is clarified. This gives the judge the opportunity to assess whether the testimony is true.

First, the interrogated person is asked to provide all known information about the circumstances of the case.

Next, the plaintiff or defendant, depending on who called the witness, asks questions. The process doesn't end there. Afterwards, the other party is allowed to ask questions. The judge has the right to intervene in the interrogation at any time.

The witness is left in the courtroom. If there are contradictions with the testimony of other persons or with the case materials, a new interrogation is carried out.

The testimony of witnesses in civil proceedings must consist only of information the source of which he can provide. For example, he personally saw what was happening or heard what he was talking about.

If a witness cannot explain exactly where he received the information, it will not be accepted by the court.

Request to question a witness

Such a petition (in other words, a request to the court) can be expressed either orally or in writing. In both cases, it is necessary to justify what circumstances that are important to the case can be told to the court by this or that person.

If the request is made orally, it will be entered into the minutes of the court hearing. Written petitions are attached to the case materials; it is not necessary to make copies for the other party (this is optional), an approximate example is here:

To the magistrate of court district No. 10 in Petrozavodsk, L.B. Mironova, plaintiff in a civil case for the recovery of 34,000 rubles for improper provision of services by defendant A.P. Maslov. (additionally, you can provide more detailed information: place of residence, telephone number, civil case number)

REQUEST to question a witness

There is a civil case pending in your proceedings based on the claim of L.B. Mironova. (that is, me) to A.P. Maslov. about the recovery of 34,000 rubles under a contract for the provision of services (repair of an apartment at my residence address: Petrozavodsk, Krasnoselskaya st., 14, apt. 5). The court hearing is scheduled for 02/20/2018, at 14:00.

I ask you to summon and interrogate G.R. Pavlova, who lives at the address: Petrozavodsk, st. Krasnoselskaya, 14, apt. 4 (it is necessary to provide the full details of the witness and his place of residence). Pavlova G.R. can explain the circumstances under which Maslov A.P. was hired by me to provide services for the renovation of two rooms in my apartment. Since Pavlova G.R. is my neighbor and close friend, I often trusted her to monitor the progress of the renovation, leaving the keys to the apartment (when filing a motion to summon the party is obliged to indicate what a potential witness can tell the court about. 2-3 sentences are enough to justify it, no need to retell everything testimony, but it is advisable to clearly “convey" to the court the essence of the information that you want to present through a witness. This will be useful if the court refuses to summon you: the appellate authority, having familiarized itself with the rationale, can take it into account and draw a conclusion in your favor).

Since Pavlova G.R. can talk about significant facts influencing the decision, while she is not a person interested in the outcome of the case, I ask you to interrogate her as a witness in the case of recovery of the amount under the contract for the provision of services from A.P. Maslov.

Based on the above, guided by art. 35 of the Code of Civil Procedure of the Russian Federation (the right of a party to file a petition) and Art. 69 Code of Civil Procedure of the Russian Federation (participation of a witness in civil proceedings),

ASK:

Summon G.R. Pavlova, residing at the address: Petrozavodsk, st. Krasnoselskaya, 14, apt. 4, for questioning as a witness.

Number, signature.

Question: When can such a petition be filed?

Answer : Almost at any time, even before the court accepts the claim for proceedings, but always before the judge retires to the deliberation room to make a final decision. The petition can be sent by registered mail (it must be registered, since this is the only way to prove sending in the event that the letter disappeared somewhere and did not reach the addressee). You can submit it to the office (for example, if you want to raise the issue of a summons before assigning the case). Make sure you have a second copy so that it can be stamped with acceptance.

And yet, most often the parties announce the calling and questioning of witnesses precisely at the court hearing. The court, having heard the petition, discusses it with other participants in the process, finding out whether they object or not. If the court comes to the conclusion that it is possible to interrogate the person requested by the author, he is summoned to the next court hearing. If attendance has already been ensured by this point (for example, when the parties are interested in a speedy consideration of the case), then the interrogation begins on the same day.

If a person is unable to attend a court hearing due to health reasons, the court has the right to organize a mobile court hearing to conduct an interrogation at the patient’s location.

All these rules are fully applicable to arbitration proceedings. Moreover, despite the dominant role of written evidence in the arbitration process, the judge is given the right to summon any person on his own initiative, without petitions from the parties. The civil procedure legislation does not directly grant the judge such a right, but does not prohibit it either. Moreover, from the meaning of Part 2 of Art. 96 of the Code of Civil Procedure of the Russian Federation (this norm provides for the distribution of procedural costs) it follows that the costs associated with calling a witness on the initiative of the court are covered from the federal budget. It turns out that the court still has the right to call witnesses without the request of the participants in the process.

It should be noted that in some situations it is not advisable to request a witness. So, in accordance with the rules of Art. Art. 161, 162 of the Civil Code of the Russian Federation, witness testimony cannot be accepted as evidence of a transaction if it was not drawn up in writing in cases where this was mandatory.

Example No. 3 . A cargo transportation company delivered furniture to a citizen, but the client refused to receive supporting documents (receipts) and formalize the contract, considering this to be unnecessary bureaucracy. Subsequently, while unpacking the cargo with a friend, the client discovered a broken mirror from an Italian manufacturer, the damage amounted to more than 100,000 rubles. The consignee filed a claim, but since he did not have documents and the transaction at his request was not formalized in writing, he decided to file a motion to interrogate his friend, who was present when the cargo was unpacked, as a witness. The court refused to satisfy the petition, since the parties cannot refer to the testimony of witnesses about the conclusion of the transaction if the mandatory written form is not complied with (in accordance with the requirements of Article 161 of the Civil Code of the Russian Federation, the preparation of written documentation is mandatory in civil legal relations between a legal entity and a citizen) . The court's refusal was recognized as legal in subsequent instances.

If your request was unreasonably denied, the court's ruling in this part cannot be appealed separately. At the same time, you have the right to express your disagreement with the refusal in an appeal against the court decision when it is made following the results of the judicial review. Practice shows that well-motivated requests in rare cases remain unsatisfied.

Evaluation of indications

Witness testimony can vary widely. There are two reasons for this: either a lie, or a person’s individual perception.

It should be noted that people are brought in only for knowingly false testimony. This means that the witness deliberately distorted real events in his story.

Most often, the testimony does not correspond to what happened due to a number of reasons: anxiety (not every day people come to court, where the atmosphere is not very pleasant), peculiarities of memory, and thinking. In addition, sometimes a lot of time passes between events and the court hearing.

Thus, the judge’s task is to find out how correctly a person perceives reality, whether his memory works well enough, and to what extent he correctly reproduces what he heard and saw.

In the absence of obvious lies in the testimony, the representative of the authority critically evaluates the testimony, motivating and justifying the reasons for its rejection.

Procedure for questioning a witness in civil cases

The procedure for interrogation is generally similar to criminal proceedings: the Code of Civil Procedure of the Russian Federation instructs the court to establish the identity of the witness - in other words, the participants in the process must make sure that in front of them is the one who was planned to be interrogated. Typically, identity is established using a passport (foreign passport), checking the data in the document. If you don’t have a passport, a license, military ID or service ID will do (the main thing is to have a photograph that can be compared with your appearance).

The court finds out:

• FULL NAME;
• place of residence and work;
• Date and place of birth;
• the presence of circumstances that prohibit interrogation (interest, special official status, etc.);
• family and close relationships with the participants in the process (they become known from the words of the interrogated).

If it turns out that a citizen is a relative of someone present, he is explained the constitutional right not to testify against other participants in the proceedings if they have close family ties with him.

The court explains the rights and obligations that we told the reader about earlier (after an oral explanation, the interrogated person is required to sign a signature, which is attached to the materials of the civil case).

The information that the citizen provided about himself and the circumstances is recorded in the minutes of the court session. The interrogated person, like the direct participants in the court session, is obliged to comply with the rules of the court proceedings: address the court “your honor” or “dear court.”

Before the start of the interrogation, the witness is removed from the courtroom; he should not be present at the court hearing when resolving procedural issues and interrogating other persons. After he has given evidence, with the permission of the presiding officer, he has the right to be in the room.

The form in which the interrogation is carried out (a story or answers to questions) is not regulated by law. Usually the procedure begins with a free story about known circumstances relevant to the case, after which answers to clarifying questions are given. The first to ask questions is the party on whose initiative the citizen was invited; the court has the right to ask questions at any time.

The presiding officer has the right to interrupt the interrogated person - for example, when he explains facts that are not relevant to the case. People who have never been to court before may unknowingly begin to talk about events that have nothing to do with the dispute - it seems to them that all the details are important. It happens that a witness is interrupted due to excessive emotionality, and sometimes due to incorrect or offensive words addressed to the participants in the process. Such behavior is considered contempt of court and may result in a fine.

The presiding officer has the right to withdraw a question (that is, not to give the participant the opportunity to ask it) if he:

• not relevant to the dispute;
• relevant to the case, but beyond the scope of the subject matter of the claim;
• formulated incorrectly, unethically, asked in a raised tone, with pressure on the witness;
• already contains the answer or directs the answer to the required party (for example, you cannot ask the question: “Did you live with the defendant because you had common children with him and he bore the family expenses, and after he was fired from his job, you decided to divorce him?” — this question already contains an answer option, which is unacceptable).

If necessary, the witness may be questioned again. For example, if the subject of the claim changes or additional demands of the plaintiff, counterclaims or other new circumstances in the case appear, as well as if there are significant contradictions between the explanations of this person and other interrogated ones.

Question: Is it possible not to appear when summoned, but to send written testimony to the court, drawn up in free form and certified by a signature (for example, when a person lives in another region)?

The answer to this question follows from the general provisions of civil law, which focuses on obtaining evidence directly from the source. Therefore, the presentation of written testimony instead of a person’s appearance in civil and arbitration proceedings is unacceptable (unlike criminal proceedings, where, subject to certain conditions, eyewitness testimony given during the investigation may be read out).

In exceptional cases, the court may send an order to the court of the region where the witness is located. During the execution of the order, the overall duration of the trial is suspended. Due to the significant increase in the period for consideration of the case and the low effectiveness (after all, it is difficult for a judge who does not know the essence of the case to take into account all the nuances and fully conduct an interrogation), this method is used extremely rarely at present.

In addition, the courts are increasingly using a video conferencing system - a technical possibility for interrogating a person located in another region, country, or even in prison. This modern method of interrogation was introduced into the Code of Civil Procedure of the Russian Federation in April 2013 and is actively used in practice.