Original scientific paper

Evidence by examining witnesses in croatian civil litigation

Mihajlo Dika

Abstract

The author endeavours to give a comprehensive analysis of the institute of the witness in Croatian civil litigation according to the regulation upon the Novelty of 2003, with certain historical and comparative aspects. The concept of this means of proof by evidence is defined, the duties of witnesses determined, the question of capability to give evidence as well as the prerequisite for admissibility of evidence are analysed, advantages and disadvantages of establishing facts by examining witnesses are presented. Prohibition from giving evidence, the right of the witness to withhold his or her testimony or to answer a particular question and the manner of evaluating the existence of reasons for exemption from giving evidence are explained. The procedure of proposing, summoning and hearing witnesses is presented. The institute of the witness’s oath is questioned. Special attention is paid to the sanctions against the witness who does not fulfil or who neglects his or her duty, but also the right of the witness to reimbursement of expenses caused by testifying. In conclusion, it is stated that in principle the regulation of the institute corresponds with the needs of practice and with regulations in other countries of the Continental legal circle. Nevertheless, the need for re-examining the existing limitations in the application of the means of proof by evidence by examining witnesses and the way of sanctioning the rules by which it is regulated are pointed out; the obsoleteness of the institute of giving oath is stressed; the author pleads for new regulations on reimbursement of the witness’s expenses, especially from the aspect of the circumstance that giving evidence is the public civic duty and not the fulfilment of civil law obligation towards parties; the necessity of intensifying coercive measures against witnesses in order to raise general discipline of giving evidence is pointed out; it is stated that within the general tendency of departure from the principle of directness and by this from the principle of free evaluation of evidence, the real value and usability of witnesses as a means of proof by evidence are seriously challenged.

Keywords

evidence, means of proof by evidence; witness

Hrčak ID:

5120

URI

https://hrcak.srce.hr/5120

Publication date:

20.4.2006.

Article data in other languages: croatian german

Visits: 16.147 *