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Being heard as a witness in a criminal case: rights, obligations and hidden risks

This article explains what it means to be summoned and questioned as a witness, how the hearing is conducted and what duties you owe to the authorities. It also highlights the risk of your status changing to suspect, the impact of inconsistent statements and the ways a lawyer can help you navigate the process safely.

Receiving a summons as a witness in a criminal case can be stressful, especially if you have never had any contact with the criminal justice system. You may not know whether you can refuse to testify, what you are allowed to say, what happens if you are mistaken or forget something, or whether what you say can later be used against you.This article aims to explain, in clear and accessible language, what it means to be heard as a witness in a criminal case conducted under Romanian law, what your rights and legal duties are, and what hidden risks you should be aware of before appearing in front of the police, prosecution or court.

We will refer to the Romanian Code of Criminal Procedure (Law no. 135/2010), to updated versions of the Code of Criminal Procedure, to case law of the High Court of Cassation and Justice and of the Constitutional Court, as well as to the European Court of Human Rights (ECHR) case law on Article 6 of the European Convention.

For context and a more practical view of criminal procedure, you can also read related articles on maglas.ro, for instance on police custody, pre-trial detention or house searches, where available in English.

1. Who is a witness in a criminal case and why this status matters

Under Article 114 of the Romanian Code of Criminal Procedure, any person who has knowledge of facts or circumstances that constitute evidence in the criminal case may be heard as a witness. This means you do not need to have seen the offence with your own eyes: it is enough that you have relevant information (what you saw, what you heard, what you were told by someone involved, certain documents you handled etc.).

As a rule, any person has both the capacity and the obligation to testify as a witness. There are, however, exceptions: some persons have a right to refuse to testify (for example the spouse or close relatives of the suspect or defendant), as regulated by Article 117 of the Code.

The status of witness is crucial because witness statements are one of the most frequently used means of evidence in criminal proceedings. The Code lays down specific rules on witness hearings both in the investigation phase and at trial (see for example Article 381 on the hearing of witnesses by the court).

At the same time, witnesses benefit from essential guarantees: the right to a fair trial, the right not to incriminate themselves, and the right to respect for private life. These follow both from domestic law (for instance Article 118 of the Code – witness’s right not to self-incriminate) and from ECHR case law on Article 6.

2. Legal framework: where do we find the rules on witnesses and their hearing

The legal regime of witnesses and their hearing in Romanian criminal proceedings is mainly regulated in:

In addition to statutory provisions, a substantial body of case law has developed regarding witness hearings, including situations where statements were declared null and void, or excluded from the evidence because the right to defence or the privilege against self-incrimination were breached. Legal scholars also analyse in depth issues such as the use of previous witness statements where the witness later becomes a defendant, and the limits on reading such statements in court in light of ECHR judgments like Al-Khawaja and Tahery v. the United Kingdom.

If you are a witness in a case handled by specialised prosecution offices such as the National Anticorruption Directorate (DNA), you will often find additional information on their websites about the rights and obligations of persons called to hearings.

3. Stage 1 – The summons as a witness: what it means and what to check

3.1. What a summons should contain

The summons is the official document by which the judicial authority (police, prosecution, court) calls you, on a specific date and time, to a specified place, to be heard as a witness. As a rule, the summons should indicate:

  • the authority issuing it (police unit, prosecutor’s office, court);
  • the capacity in which you are summoned – witness (not suspect or defendant);
  • the date, time and place where you must appear;
  • the possible consequences of unjustified absence (judicial fine or being brought in under warrant);
  • the obligation to inform the authority if you cannot appear for serious reasons.

Always check carefully the status mentioned in the summons and note the contact details of the authority. If you do not really understand why you are being called, you can contact the authority or speak to a lawyer before the hearing, in order to have a clearer picture of your role in the case.

3.2. The obligation to appear as a witness

According to Article 114 paragraph (2) of the Code, any person summoned as a witness is obliged:

  • to appear before the judicial authority at the place, day and time indicated in the summons;
  • to take the oath or solemn declaration (in court);
  • to tell the truth.

Unjustified absence may be sanctioned as judicial contempt by a judicial fine, and in some situations the authority may order that the witness be brought in under warrant. This is expressly reflected in practice and in public information materials, such as the DNA page on rights and obligations of persons in criminal proceedings.

3.3. What if you really cannot attend?

If you have an objective reason (serious illness, being abroad, force majeure) and cannot appear on the date indicated in the summons, you should:

  • inform the authority as soon as possible using the contact details provided in the summons;
  • send supporting documents (medical certificate, travel documents, other evidence);
  • ask for a new date for the hearing.

Being busy at work or simply not feeling like going are not considered valid excuses. You risk a fine and, in serious cases, being brought in under warrant. If in doubt, seek advice from a criminal defence lawyer, especially where you are called as a witness in a complex or high-profile case.

4. Stage 2 – Appearing before the authority and being informed of your rights

Once you appear before the investigating authority or the court, the hearing should follow a number of mandatory steps, as regulated in Article 122 of the Code and related provisions.

4.1. Verifying your identity and status

The judicial authority will verify your identity (ID card, passport) and clarify the capacity in which you are questioned. It is very important for you to know whether you are being heard as a witness, injured party, suspect or defendant, because the rights and obligations differ significantly.

The Code requires authorities to inform you of your rights and obligations in the capacity in which you are heard. In the case of a witness, you must be informed that you are obliged to tell the truth and that you have the right not to testify on facts that would incriminate you, as laid down in Article 118 of the Code.

4.2. The privilege against self-incrimination (nemo tenetur se ipsum accusare)

Article 118 enshrines the witness’s right not to make statements on facts and circumstances that, if known, would expose them to criminal liability. The authority must inform you of this right before the hearing begins.

This rule reflects the privilege against self-incrimination under Article 6 of the European Convention on Human Rights, as interpreted in the case law of the European Court of Human Rights. The Court has consistently held that no one may be forced to contribute to their own incrimination, including through statements given as a witness.

The Romanian Constitutional Court has also emphasised that hearing a person as a witness does not remove their right not to self-incriminate where, in substance, that person is in the position of a potential offender (Decision no. 236/2020).

4.3. Can you be assisted by a lawyer as a witness?

The Code of Criminal Procedure does not expressly provide for a general, full-fledged right of the witness to be assisted by a lawyer in the same way as a suspect or defendant. However, legal doctrine and some court practice recognise that, especially where there is a risk of criminal liability, it is both reasonable and advisable for the witness to consult and, where possible, be assisted by a lawyer.

Articles and professional materials published by bar associations point out that the assistance of witnesses by lawyers is often limited in practice, which may affect the effective exercise of rights (see for example the analysis on assistance of witnesses by lawyers in criminal proceedings).

In practice, you can:

  • consult a lawyer before the hearing to discuss your status and possible risks;
  • ask to be accompanied by your lawyer during the hearing; even if the authority may limit active intervention by the lawyer, their presence can help you feel safer;
  • ask for clarifications whenever you do not understand a question or the consequences of what you are being asked to state.

If there is any realistic risk that your statements could expose you to criminal charges, you should immediately discuss the situation with a criminal lawyer before you speak in detail about the facts.

5. Stage 3 – The actual questioning: how questions are put and how answers are recorded

The concrete manner in which the witness is heard is regulated in Article 122 and related provisions of the Code. In essence, the hearing follows several logical steps.

5.1. Explaining the subject matter of the case and the warnings

Before the actual statement begins, the authority must briefly inform you of the subject matter of the case and warn you about your obligation to tell the truth and about the consequences of false testimony. In court you take an oath; in the investigation phase you sign that you have been informed of these aspects.

The warnings and the capacity in which you are heard must be recorded in writing in your statement. If they are missing, the lawfulness of the statement can later be challenged, and the court may consider excluding it from the evidence. That is why case law and legal doctrine insist on the importance of this stage for safeguarding the right to defence and a fair trial.

5.2. Questions and clarifications

As a rule, the authority asks clear, non-leading questions. In the trial phase, Article 381 provides that the parties and the prosecutor have the right to directly question the witness.

As a witness, you have the right to:

  • ask for a question to be repeated or rephrased if it is unclear;
  • state explicitly when you do not remember something exactly or are not sure about a detail;
  • correct immediately any mistakes or unfortunate formulations;
  • avoid speculation – you should describe what you perceived directly, not legal conclusions or guesses.

5.3. Recording your statement and your right to read it before signing

The statement is usually drafted by the authority, based on the answers you give. Before you sign, it is critical that you:

  • read the entire statement (or have it read out to you if you cannot read yourself);
  • ask for corrections where the wording does not accurately reflect your answers;
  • add clarifications when necessary (for example: “I do not remember the exact time, but I think it was in the morning.”).

Your signature confirms that the text reflects what you said. If later you realise there are errors or inconsistencies, it becomes much more difficult to correct them, although not impossible (you can give supplementary statements, request clarifications, or explain the errors before the court). The more careful you are at this stage, the lower the risk of problems later on.

6. The witness statement and the risk of false testimony

The most important legal duty of a witness is to tell the truth. Breaching this duty can amount to the criminal offence of false testimony, regulated in Article 273 of the Criminal Code.

The provision punishes the witness who, in a judicial procedure, “makes false statements or does not tell everything they know” about essential circumstances. The penalty is imprisonment from 6 months to 3 years or a criminal fine, and in certain situations (protected witnesses, undercover investigators, experts etc.) the limits of the penalty are higher.

Court practice shows that false testimony is taken seriously, especially in complex criminal cases. For example, in a case presented in a DNA press release, the fact that the witness later signed a notarised statement contradicting their earlier testimony did not automatically trigger the ground for exemption from punishment laid down in Article 273 paragraph (3); the retraction must occur in the same proceedings and before the start of the criminal investigation for false testimony (example from DNA practice).

6.1. Difference between memory errors and deliberate lies

Not every discrepancy between your statement and what actually happened in reality is false testimony. The offence requires intent. If many years have passed, your memory may be affected; if you perceived a detail incorrectly or were under stress, your error may be understandable. This is why it is important to:

  • state clearly when you are not sure (“I am not certain whether…”);
  • avoid categorical wording when you cannot genuinely support it;
  • not fill memory gaps with what you think probably happened or with what others said.

6.2. Can you retract a witness statement?

The Criminal Code provides a ground for exemption from punishment for the witness who retracts their false testimony before certain procedural moments (for example, in criminal cases, before the suspect is detained, arrested or the criminal action is brought against them). The rule is technical and courts interpret it strictly. Simply admitting later that you lied does not guarantee you will not be held criminally liable.

If you realise that you made an erroneous or incomplete statement, you should speak to a lawyer as soon as possible. Depending on the context, the strategy may include requesting a new hearing, making an additional statement or explaining the error during trial.

7. Persons who may refuse to testify: family members and the witness who is actually a suspect

7.1. The right of close relatives to refuse to testify

Article 117 of the Code lists the persons who have the right to refuse to be heard as witnesses: the spouse, ascendants and descendants in direct line, brothers and sisters of the suspect or defendant, as well as the former spouse and persons who live with them in a relationship similar to that of spouses.

The Constitutional Court has extended this protection to persons who have formed relationships analogous to family relationships, so as to avoid putting them in a position where they must choose between telling the truth and protecting their partner or family.

7.2. The witness who is in fact also targeted by the investigation

In practice, it is not unusual for someone to be called “only as a witness”, while the questions and context show that there are suspicions against them as well. In such situations you must be particularly attentive to your right not to incriminate yourself, as guaranteed by Article 118 and Article 6 of the European Convention.

The Constitutional Court has made it clear that hearing the offender as a witness does not remove their privilege against self-incrimination and that authorities cannot bypass the guarantees owed to suspects or defendants by simply labelling them as witnesses (Decision no. 236/2020).

Legal scholarship discusses this issue extensively, stressing the need to ensure that witnesses enjoy both the privilege against self-incrimination and the possibility of being assisted by a lawyer throughout their hearing.

If you feel that the questions focus, in substance, on your own conduct and possible liability, it is prudent to:

  • invoke your right not to testify on those specific aspects;
  • ask to consult or be assisted by a lawyer;
  • bear in mind that your earlier statements as a witness may later be examined in a case where you are a suspect or defendant, even though Article 118 limits the use of such statements against you.

8. Minors and vulnerable witnesses

The Code of Criminal Procedure sets out special rules for hearing minor and vulnerable witnesses in order to protect them from secondary trauma and to obtain sincere, complete statements.

Article 124 provides that witnesses under the age of 14 are heard in the presence of a parent, guardian or representative of the institution where they live, and in the presence of a psychologist. The psychologist offers support for the duration of the proceedings.

In cases concerning violent offences or sexual offences, additional measures may be ordered, such as hearing the witness in a separate room, using audio-video systems or limiting direct contact with the defendant, so as to reduce pressure on the witness.

Best practice guidelines for witness hearings, including those published by the National Institute of Magistracy, insist on adapting the language used, the length of the hearing and the environment, depending on the age and vulnerability of the person being heard.

9. Hidden risks for witnesses: what you should keep in mind

Although in theory the witness is a neutral party, being summoned in a criminal case comes with several risks that you need to be aware of.

9.1. Changing status from witness to suspect or defendant

If, during the hearing, a reasonable suspicion arises that you may have committed an offence, the authority must change your procedural status: you have to be informed that you are now a suspect, you must be informed of your rights (including the right to remain silent) and, as the case may be, the authority must ensure that you have legal assistance. These are both requirements of the Code and of Article 6 of the European Convention.

The hearing cannot simply continue as if you were still a neutral witness if, in substance, your position has changed. Any attempt to sidestep these rules can lead to discussions about the admissibility of the evidence and breach of the right to defence.

9.2. Psychological pressure and the risk of incomplete or contradictory statements

The setting of a police station or courtroom, insistent questioning or legal jargon can put significant psychological pressure on witnesses. Under pressure, some people may be tempted to say what they think the authority “wants to hear” rather than what they genuinely remember.

As a witness, it is crucial to remember that you:

  • have a duty to tell the truth, not to confirm any particular version of events;
  • have the right not to incriminate yourself;
  • can ask for breaks, can ask for clarifications and can refuse to sign a statement that does not reflect what you actually said.

9.3. Disclosure of personal data and fear of retaliation

In certain cases (especially those involving organised crime or high media exposure), witnesses may fear for their own safety or that of their family. The Code of Criminal Procedure and special legislation provide for protective measures: hearings with protected identity, anonymisation of the witness’s name in documents, physical protection measures etc.

If you consider that there is a real risk, you should inform the authority and discuss with a lawyer whether you can be granted protected witness status under the law on witness protection.

10. Practical tips: how to prepare for a witness hearing

From the perspective of a person without legal training, a few simple steps can make the difference between a clear, helpful witness hearing and one that creates problems later on.

  • Mentally review the facts before the hearing. Think about dates, places, persons involved, what you saw or heard directly and what you were told later.
  • Separate facts from opinions. As a witness you should report what you perceived directly. Opinions (“it seemed to me that…”) should be clearly presented as such.
  • Do not rush your answers. You are allowed to think for a few seconds before answering.
  • Say when you do not know. “I do not know” or “I do not remember” is an honest and lawful answer when you genuinely lack information.
  • Read your statement before signing and ask for changes whenever wording does not match what you actually said.
  • Consult a lawyer if there is any indication that your own conduct may be examined from a criminal law perspective.

In situations where you are summoned early in the morning in connection with a house search, seizures or coercive measures, dedicated guides (for example on police custody, pre-trial detention or searches at home or at company premises) can help you better understand the broader procedural context.

Frequently asked questions (FAQ) on being heard as a witness in a criminal case

1. What happens if I do not appear when summoned as a witness?

Unjustified absence may be sanctioned with a judicial fine, and the authority may order that you be brought in under warrant, in accordance with the Code of Criminal Procedure. If you cannot appear for objective reasons (illness, travel abroad etc.), you should inform the authority in good time and send supporting documents.

2. Can I refuse to give a statement as a witness?

You can refuse to testify only in the specific cases provided in Article 117 (spouse, close relatives etc.) and when your testimony would expose you to criminal liability, under Article 118. In all other situations, there is a general duty to testify, with due regard for the privilege against self-incrimination.

3. Am I allowed to have a lawyer with me if I am only a witness?

Although the Code does not expressly enshrine a general right of witnesses to be assisted by a lawyer, it does not prohibit you from consulting or being accompanied by one. Especially when there is a risk that you might be exposed to criminal liability, it is advisable to speak to a criminal lawyer before the hearing and, where possible, to have them with you during the hearing.

4. What should I do if I realise after the hearing that I made a mistake or omitted something?

If you later realise that you made an erroneous statement or omitted an important detail, you should contact a lawyer as soon as possible and analyse the options: requesting a new hearing, making a supplementary statement or clarifying the issue before the court. It is not advisable to try to fix the situation informally, for example by contacting people involved in the case outside official channels.

5. Can my statements as a witness be used against me if I later become a defendant?

Yes, your previous statements as a witness may be examined in a case where you later become a defendant, although Article 118 limits the use of such statements against you. The issue is complex and depends on the concrete circumstances, which is why it is essential to exercise your privilege against self-incrimination from the very first hearing.

Sources and further reading

This article is for information purposes only and does not replace tailored legal advice. For concrete situations you should consult a lawyer specialised in criminal law.

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