Examination of a witness before a civil court

How a witness is examined in civil proceedings:

Attorney Mihail Tomov | Varna

Before the court begins examining witnesses at a hearing, they should not be present in the courtroom while procedural actions that could affect the objectivity and reliability of their testimony are carried out. If a witness was in the courtroom and observed procedural actions relevant to the subject of their testimony, this does not make the witness incapable of giving evidence, but it may undermine the reliability of the testimony.

When their identity is established, the witness must present an identity document and state their full name and age. Under Article 172 of the Code of Civil Procedure, the court asks the witness whether they are related to any of the parties and whether there are proceedings between them and the parties. The witness is not asked for, and the hearing record does not include, their personal identification number or marital status, as these are personal data within the meaning of Article 2(1) of the Personal Data Protection Act. At the same time, so that the witness can be found if necessary, for example for a further examination or a confrontation, and where perjury is established as grounds for referring the matter to the prosecution service, the number of the witness’s identity document may be recorded. In practice, witnesses are also asked whether they have been convicted of an offence under Article 290 of the Criminal Code for the purpose of assessing the reliability of their testimony, although this circumstance is not listed by the legislature in Article 172 of the Code of Civil Procedure.

As a rule, the court first examines the witness called by the party bearing the burden of proof for the relevant facts, and then the witnesses of the opposing party, if any have been called. The witness gives evidence by answering first the questions of the party who requested the examination, then those of the opposing party and the court. The court may, however, ask its questions first and only then allow the parties or their lawyers to ask questions.

A witness should not be asked leading questions, meaning questions suggesting a particular answer, or questions concerning facts other than those for which the witness was allowed to testify.

Legal theory states that the hearing should be conducted with respect for the personal dignity of citizens and in a calm and tolerant setting.

After the examination has concluded, the witness may remain in the courtroom.

If the witness was admitted subject to being summoned, after the examination the court orders payment of remuneration and travel expenses to the witness.

If the court finds that the testimony is unclear or incomplete, whether because of the manner in which the examination was conducted or in view of evidence given by a witness examined later, any witness may be examined again on the same facts at the same or a subsequent hearing, at the witness’s request, on a party’s application or on the court’s own initiative (Article 171(2) of the Code of Civil Procedure). During a further examination, the witness’s identity is not established again; the witness is only reminded of the criminal liability under Article 290 of the Criminal Code.

If the court finds contradictions concerning the same specific facts in the testimony of two witnesses, or a contradiction between witness testimony and the explanations of a party, a confrontation between those persons may be conducted under Article 174 of the Code of Civil Procedure.

Attorney Mihail Tomov | Varna