Is there a need for a condition witness institution during investigation?

Is there a need for a condition witness institution during investigation?

One of the expressions frequently used in criminal cases is "… confirmed by condition witnesses...". Who is a condition witness, and what his confirmation is needed for? What function does a condition witness carry out during investigation?

Witness and condition witness: what is the difference between these notions?

A witness is a person who is aware of the circumstances representing significance for the case. He (she) is a person who has seen the event, who has observed the criminal event (or the administrative offense) at the moment of its occurrence or who have known the content of the event beforehand.

And the condition witness is involved in the investigation process by the investigator or inspector (interrogator) after the occurrence of an event. The condition witness confirms not the event itself, but the results of the procedural actions conducted by the inspector or investigator after the event.

The witness becomes a participant of the event beyond his (her) control, and the condition witness joins the investigation process at his (her) sole discretion. The condition witness does not have his (her) personal interest in the criminal investigation process. He (she) takes part in his (her) sole discretion in the implementation of investigation action in order to confirm the identified facts, their content, the course of their occurrence and their results. A person involved in the investigation in the capacity of condition witness should be able to understand fully and correctly the events occurring with his (her) participation...

Which persons can’t act as a condition witness?

The employees of examination, preliminary investigation bodies, prosecutor’s offices, and courts, as well as persons not having reached their mature age and not being a citizen of Azerbaijan,  cannot act as condition witness. At the same time, the participants of the criminal process or their close relatives, as well as the persons having defects in their visual, hearing and speaking abilities or suffering from psychological diseases cannot act as condition witness. An employee of examination or investigation body is obliged to determine the identity of the condition witness. The condition witness should come to crime prosecution body in response to its summoning, should provide information about his (her) relations with the persons participating in the crime process, should obey the procedural instructions of the person conducting the investigation action, should attentively track the events occurring during implementation of the investigation action involving him (her), and should not leave the area where the investigation action is conducted.

The condition witness should obey the procedural instructions of the employee of investigation body, should not impede the activities, but should refrain from executing the illegal instructions of the investigation body, should express his objection against the proofs collected in violation of law, and should refuse to sign the minutes of investigation if his (her) comments are not reflected in the minutes. The condition witness should not disclose the information about the investigation action conducted with his (her) participation and the identified circumstances, and the information related to the sanctity of private life, family, state, professional and commercial secrets and other secrets protected by law.

In order to identify the genuineness or falseness of condition witness, the distance between the scene of the event and his (her) residence or workplace, and the reason which necessitated him (her) to go to the scene of the event should be clarified. At the same time, the long-term phone contacts or communications of the condition witness with employees of examination or investigation body and his (her) involvement in other criminal cases should be checked.

 According to relevant laws, a person shall be held responsible for law violations committed by him (her) during his (her) activity as a condition witness.

Is a condition witness institution necessary?

Currently, the condition witness institution has a non-functional nature because the task of this institution is to implement the public control function over the investigation body. And currently, the up-to-date information technologies, the video shootings which can be conducted during the implementation of examination or investigation, and the introduction of other new methods actually bring to nothing the need in condition witness.

If a video shooting is used when conducting investigation actions after making changes in the laws, for instance, when implementing a visual inspection, the participation of condition witness is not considered necessary. And in general, the video shooting of investigation actions can be more efficient than the use of condition witness institutions because in the realities of Azerbaijan people don’t show interest in becoming a condition witness. A condition witness is treated as a "whistleblower", "strikebreaker".

Let's imagine that a crime is committed or police conduct an operation at 3 o’clock in the night. Is it possible to find a citizen occasionally passing through that territory at 3 o’clock in the night or agreeing to act as a condition witness? I even had difficulty in finding a condition witness at the scene of an event where many people were present during the investigation actions in which I participated repeatedly.

Just for this reason, an investigation body always invites condition witness whom it is familiar with or “full time” condition witnesses. And such persons don’t understand the essence of events, don’t track the sequence of the process, and are not interested in the content of the events. Sometimes, they nominally confirm by signature the circumstances which they don’t understand and which they haven’t actually witnessed. And this creates conditions for groundless imprisonment.

There is not a provision in the legislature regarding a person’s actions as a condition witness once or several times.

In practice, the courts have delivered acquittal judgments for involvement in the investigation of “full-time” condition witnesses and for other procedural misdeeds and failure to ensure fairness of proving of guilt. A condition witness shall nor have an interest in the case in which he (she) is involved and shall be involved in investigation process at his (her) sole discretion. The condition witness shall participate in the investigation process during the investigation action, shall get acquainted with the final minutes, and shall require inclusion in the minutes the circumstances which are necessary to be recorded. At the same time, he (she) should express objection regarding reflection in the minutes of the particularities which he (she) hasn’t observed or which differs from what he (she) has observed, and shall sign a document submitted to him (her) only in case he (she) understands its content. The condition witness shall have the right to be repaid his (her) personal funds spent during the crime investigation process and to receive compensation for the damage caused to him (her) as a result of the illegal actions of the institution which carries out the investigation process. And in practice, such a case almost does not occur. In most cases, the "full-time" condition witnesses cooperate with an employee of an investigation body and get satisfied with a small fee received in exchange for signing the minutes.

In fact, in the contemporary economic model, money is an equivalent of the spent time, and it is normal that the condition witness receives a reward for the time or the resources (travel, food expenses, etc.) spent for tracking the investigation actions. However in no case should it be done as a result of the bargain with an employee of examination or investigation body, and it should be done in accordance with the requirements of the legislation. It is regrettable that the clause 94.4.5 of the Criminal Procedural Code (CPC) is not effective.

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