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The new ComPC does not state how the court Is to establish the credibility of the source reported by the witness

publication . 01 December 2017

The introduction of the institution of witnesses is in the new Commercial Procedure Code of Ukraine (the ComPC) is a positive measure. However, unclear wordings and some gaps may lead to abuse. Much will depend on the court.

Contacts

Kateryna Manoylenko

Сounsel, Head of litigation practice, Attorney at law

The introduction of the institution of witnesses is in the new Commercial Procedure Code of Ukraine (the ComPC) is a positive measure. However, unclear wordings and some gaps may lead to abuse. Much will depend on the court.

Testimony as Evidence

Testimony of witnesses is one of the means of proof in the new ComPC (No. 6232). It is to be noted that this has generated much controversy among specialists.
The majority supports such a novelty, indicating the need for the unification of the civil and commercial proceedings. However, sceptics emphasise that it can only lead to delaying the consideration of cases and manipulations.

The document states that circumstances (facts), which are reflected in (covered by) relevant documents according to the legislation or usual business practices, cannot be established on the basis of testimony of witnesses. Such a norm is natural and reflects the prevalence of written evidence over the witness's testimony.

It is also determined, under what conditions the witness’s testimony cannot be regarded as evidence. There are 2 criteria:

  • If the witness cannot report the source of his/her information;
  • If the testimony is based on the messages of other persons.

As for the second criterion, everything is clear enough. But as regards the first one, the issue on how the court should establish the credibility of the source reported by the witness remains unsettled. After all, the latter can report any source, but the code does not establish the mechanism for the court to verify this information. Thus, it remains unclear, how the court will determine, whether to accept or not the testimony as evidence.

Summons to Attend the Judicial Hearing

The ComPC also provides for the possibility of obtain testimony in the form of a written statement, which has to include:

  • Mandatory requisites (data identifying the person, place of work, communication means, passport data);
  • Circumstances known to the witness;
  • Source of information;
  • Confirmation of the awareness of criminal liability for false testimony;
  • Assurance of the readiness to appear in court, if summoned, to confirm the testimony.

The signature on such a statement has to be certified by a notary. This rule does not apply, if the statement is made by a party to the case, which has agreed to be interrogated as a witness.

The procedure for the execution of a witness’s statement bears certain risks for the parties. First of all, this is due to the fact that the witness who signed it can be summoned only by court order. That is, the respective decision remains at the discretion of the court.

If the latter assumes that the circumstances set out in the statement do not contradict other evidence and do not cause doubt, then it may not summon the witness, even if another party requests so. In the given situation, the opposing party will be deprived of the opportunity to ask the witness, who was involved by its opponent in the case. Also, the opposing party will not be able to establish the fact of compliance with the procedure for signing a statement, and that, in aggregate, may lead to manipulations on the part of unscrupulous parties to the proceedings and violation of the principle of equality of parties.

Method of Delaying

The commercial proceedings have always been distinguished by the focus on supporting the circumstances of the case by documents. Perhaps, that is why the norm providing for the possibility to submit a statement of the witness is formed in such a way as to make him/her summoned to the court hearing only in exceptional cases, and the notarised written statement should be taken as the basis.

However, in practice we can get a situation, where an unscrupulous party to the proceedings will provide the court with numerous witness’s statements. At the same time, to ensure the principle of equality of parties the court will satisfy the opposing party’s requests for summoning these persons to the hearing. Of course, this can delay the proceedings. Under such circumstances, the commercial proceedings may lose its inherent promptness and simplicity.

Limited Amount of Questions

Moreover, the ComPC provides for the possibility to ask other parties to the case 10 questions about the circumstances significant for this case. It is allowed to do that in the first statement on the merits of the case within the timeframe defined for the submission of evidence.

The party that has been asked these questions is required to reply separately to each of them in writing. Herewith, if more than 10 questions are asked or some of them are not relevant to the circumstances significant for the case, the party is not obliged to reply. Unlike witnesses who set out their testimony in the statement, the parties to the proceedings are not warned about the criminal liability for false testimony.

In general, the introduction of the institution of witnesses in the commercial proceedings can be described as a progressive novelty of the judicial reform. At the same time, unclear wordings and lack of proper regulation of certain details can contribute to the abuse on the part of unscrupulous parties to the proceedings and lead to delays in the timeframe for consideration of cases. In such a situation, the possibility of the parties’ admitting procedural abuse will depend on the court itself.

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