Liudytojo sąvoka Lietuvos ir kitų užsienio valstybių baudžiamajame procese

Abstract

This article contains the analysis of the participant of criminal procedural activity – witness definition. Evaluation of witness’ definition is very urgent, because there is not enough attention given in the scientific literature for this problem. This field has an importance and topicality for several reasons. Firstly, the urgent thing is rational realization of witnesses’ rights and duties. The second one is the effect of the protection mechanism and the problems of the realization of giving the testimony potential. That is why this article is directed to give an attention to the apprehension of essence of the witness definition, in order to have this participant as irreplaceable one in the criminal procedure thereof. The separation of system of objective and subjective aspects of witness definition determines constructive apprehension of this participant’s procedural asset. One of the most famous cases in the Strasbourg Court practice was Kostovski vs. Netherlands. The main statement in this case was made by the Court: “A statement by a witness is understood to be his statement, made in the investigation at the trial, of facts or circumstances which he himself has seen or experienced.” And this reflects both sides of witness potential in order to testify: objective (its outside expression) and subjective (its inside expression).
Having analyzed the essential factors, the author made the following conclusions:
- determination of the witness definition has close connection with the legal status of this participant, the protection mechanism of his rights and freedoms, substantive and procedural legal responsibility;
- analyzing international practice and case-law, the definition of witness is only given by nonobligatory nature international instruments. Therefore, those definitions are alike the models of general nature. That is why Contracting States have to set the limits of the present definition in accordance with the provisions and practice in domestic law;
- the Code of Criminal Procedure of the Republic of Lithuania constrains only the legal basis for summoning the witnesses. In contrary with the practice of foreign countries, the Code of Criminal Procedure of the Republic of Lithuania does not consider the objective and subjective aspects of the witness definition and this is not a positive feature. It is necessary to specify these aspects, because of this will be the main step going towards the optimal participation of witnesses in criminal procedural activity.