Sample petition to attract witnesses in a civil case

Why do you need a motion to call witnesses? Is it necessary to declare it or can you do without it? Who are witnesses and why are they needed? Let's answer these and other questions.

A request to call witnesses must be made in order for them to be invited and heard in court. The court will not invite them on its own initiative. It is better to submit the petition in writing so as not to miss all the requirements that are provided for by the Code of Civil Procedure of the Russian Federation.

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Petition to call witnesses

About witnesses in the Code of Civil Procedure of the Russian Federation

Any citizen who is aware of the circumstances of the case, who may be an eyewitness to the event or who learned about the event from third parties, has the right to act as a witness in court. In the latter case, he is obliged to inform the court who and when told him this information. In the case of children and the incompetent, if they are unable to assess the consequences of their actions, their participation as a witness is prohibited.

Procedure for questioning witnesses

According to Article 177 of the Code of Civil Procedure of the Russian Federation, each witness is questioned separately. He can also be questioned through the use of video conferencing systems. The judge ascertains the witness’s relationship to the participants in the case and offers to provide the court with information about the circumstances of the case. If evidence is in doubt, litigants may ask questions. The person at whose request the witness was called, the representative of this person, and then the other participants and their representatives ask questions first. The judge has the right to ask questions to the witness at any time during his interrogation. If necessary, the court may re-examine the witness in the same or subsequent court hearings, as well as re-examine him to clarify contradictions in their testimony. An interrogated witness may leave the courtroom before the end of the trial if the court does not require his further participation.

Who can be a witness in a civil case?

Testimony is an oral report by a witness about the facts known to him, which help to objectively make a decision in a given case. The testimony is recorded by the secretary in the minutes of the meeting.

According to Article 69 of the Code of Civil Procedure of the Russian Federation, any citizen who, for one reason or another, became aware of the circumstances of the case, can act as a witness. He undertakes to inform the court of all information known to him.

The following cannot act as witnesses:

• priests (according to information received at confession);
• court employees, jurors (according to information that became known during meetings on the case);
• defense representatives, mediators (for certain circumstances related to specific cases).

Witnesses may not testify against themselves or close relatives.

You shouldn't call a large number of people. Usually, one witness per specific circumstance that is of significant importance to the case is sufficient. But for reinsurance and better clarification, you can imagine two or three citizens.

It is worth considering that if a witness cannot come to the courtroom for good reasons (serious illness, old age, disability), then he is questioned by law enforcement officials at his place of residence.

How to draw up a petition to call a witness

A petition is an appeal by a participant in a case to the court with a request to involve a person capable of providing important information. A citizen filing a petition to summon witnesses to court must indicate the circumstances that the witness will clarify, as well as his initials and residential address. Filing a petition lies entirely with the interested party, since the court is not obliged to take the initiative in this matter. This can be done by mail or by going to court.

Sample

The form for a request to attract witnesses in a civil case is practically no different from other applications in civil proceedings.

• "A cap"

1. name of the judicial district or court
2. his address;
3. data of the parties to the proceedings (full name or name of organization, postal address, telephone, email address);
4. case number.

• Main part

1. Title of the document;
2. content of the claim;
3. justification for the need to call a witness;
4. links to art. 35, 69 Code of Civil Procedure of the Russian Federation;
5. witness data;
6. list of attached documents.
7. Date, signature.

Note!

• Issues of divorce and collection of child support are considered in two different trials. Therefore, it is advisable to file two claims in court. The claim for alimony will be considered by the court without delay, and the spouses will be divorced within 1 to 2 months.
• Cases regarding the collection of alimony are not classified as complex. You are quite capable of drawing up a statement of claim on your own, collecting the entire package of documents attached to it and personally submitting it to the court Read more>>
• We do not recommend using the services of sites that promise to remotely draw up a claim for money and file it in court without your participation.
• When collecting alimony in a fixed amount, or if the defendant has several sources of income, some of which he hides, the assistance of a qualified lawyer may be required. The participation of a lawyer in resolving such disputes is not necessary; a lawyer without a lawyer’s status can successfully represent your interests in court.
• Mandatory conditions when choosing a representative, a lawyer or lawyer, are his legal literacy, experience, impeccable reputation and specialization in conducting divorce cases.

Where and when to submit an application

The petition is submitted directly to the court in written or oral form at any stage of the trial, up to the moment the judge leaves to make a decision. But you should act in this way only in cases of extreme necessity. In a normal situation, it is better not to delay and prepare all the required documents in advance. It is best to attach a petition to the claim if the circumstances of the case allow it.

Writing a petition will allow it to be processed in accordance with the established norms of the law, and the chances of successful acceptance of the petition by the court will increase significantly. In addition, during an oral request to call a witness during the trial, the judge raises the issue for joint discussion with the opposing party to the dispute. The decision on the need to invite a witness may not be in your favor. You can appeal a refusal only by filing an appeal after the final decision on the case is made.

Filing a petition to call witnesses to participate in a civil trial is an action that requires compliance with a number of formalities. The judge may reject even a correctly drafted application based on the circumstances of the case. But submitting a document correctly and on time will significantly increase your chances of a favorable outcome of the process.

Forms of false witness testimony

In accordance with the first part of Article 70 of the Code of Civil Procedure of the Russian Federation, a citizen who is summoned to court for questioning as a witness is obliged to appear and truthfully tell about the facts known to him. Personal presence in the courtroom is necessary so that the judge can look at the witness, evaluate his behavior and the veracity of his testimony. The person is also notified of criminal liability for giving false testimony. One must distinguish between perjury and delusion.

Perjury is the purposeful provision of false information. In this case, the witness can both distort some circumstances and speak generally fictitious facts, but do this consciously. Reasons for such behavior can include profit, revenge, disgust and fear. However, it is worth noting that perjury under the influence of threats is viewed from a different angle than for the sake of self-interest.

If a person reports information and does not realize that it is unreliable, then this is a misconception. It is very important that the witness be a person who is not interested in the court's verdict.

Article 166 of the Code of Civil Procedure of the Russian Federation. Resolution by the court of petitions of persons participating in the case (current version)

1. In the preparatory part of the court session, the court resolves the petitions of the persons participating in the case.

The Code of Civil Procedure of the Russian Federation provides for ways for persons participating in the case to appeal to the court:

- explanations;

- statements;

- petitions;

- complaints.

The explanation of the parties and third parties is a means of proof and contains information about the circumstances relevant to the consideration and resolution of the case (included in the subject of evidence in the case). A complaint is a written document of a person participating in a case (in cases provided for by law, also a person not involved in the case, whose rights are affected by the case under consideration), aimed at challenging court decisions or court actions.

Statements and petitions submitted by participants in the process during the consideration of the case have similar legal content; the difference between them is not always clear. Statements and petitions can be presented both orally and in writing; they are addressed to the court and are a procedural means of presenting the position of the participants in the process on issues arising during the consideration of the case.

The main difference between them in procedural law is associated with their legal consequences: a statement does not always give rise to the court taking any procedural actions immediately after its statement, while the court is obliged to resolve any petition in compliance with the established procedural order (with hearing the opinions of the persons involved in the case and acceptance of the determination) immediately after its submission. The application can come from both a person participating in the case and from other participants in the process, while a petition is submitted by a person participating in the case.

For example, a person participating in the case may declare that the evidence available in the case is forged (Article 186 of the Code of Civil Procedure of the Russian Federation). In connection with the receipt of such an application, the court has the right to: 1) order an examination to verify this application; 2) invite the parties to present other evidence; 3) evaluate the evidence about which the statement was made for falsification when making a decision.

When examining material evidence, persons participating in the case, witnesses, experts and specialists may draw the court’s attention to certain circumstances related to the inspection; these statements are entered into the minutes of the court session (part 1 of article 183 of the Code of Civil Procedure of the Russian Federation). These statements may be the basis for: 1) the appointment of an examination; 2) assessment of the specified circumstances in the court decision.

At the same time, the petition of the persons participating in the case to conduct an examination is subject to mandatory resolution by the court with the adoption of a ruling on its satisfaction or refusal immediately after the application is submitted.

Thus, a petition is an oral or written appeal to the court by a person participating in the case, which sets out a request for the court to perform a procedural action that affects the course of the trial.

2. The parties and other persons participating in the case, during the consideration of the case, have the right to submit numerous petitions relating to various aspects of the consideration of the case.

The Code of Civil Procedure of the Russian Federation does not contain a complete list of possible petitions. Some of them are stipulated in the Code: on the transfer of the case to jurisdiction (clauses 1, 2, part 2, Article 33), on the replacement of an improper defendant (Article 41), on the involvement of third parties in the case (Article 43), on the collection of evidence (part 2 of article 56), on the calling of witnesses (part 2 of article 69), on the appointment of an examination (part 2 of article 79) and others.

However, the absence of a special indication in the Code of Civil Procedure of the Russian Federation on the possibility of filing any petition does not indicate that the persons participating in the case do not have such a right.

3. Persons participating in the case have the right to file petitions throughout the trial, from the moment the civil case is initiated until the end of the resolution of the case on the merits at the court hearing.

At the same time, the resolution of petitions in the preparatory part of the court session is highlighted by the legislator as a procedural action, which has received special recognition in a separate article. The resolution of petitions that the persons involved in the case have at the time of the start of the court session is aimed at establishing the possibility of resolving the case at a given court session or at organizing the effective conduct of the court session.

For example, granting a motion to subpoena evidence may result in a postponement of the trial.

Satisfying, in the preparatory part of the court session, a request to add to the case materials written evidence obtained by the party independently or to question witnesses who appeared in court will require the court to plan the course of the court session, taking into account the time required to examine new evidence, as well as the removal from the courtroom of persons whom it was decided to interrogate as witnesses. Satisfaction of the request to consider the case in a closed court session will lead to the removal from the courtroom of all persons present in it who are not participants in the process.

In the preparatory part of the court session, both petitions received by the court from the participants in the process after the ruling on the appointment of the court session (for example, by mail) and those submitted directly at the court session are resolved. At a court hearing, a petition may be presented in writing or orally; an oral petition is entered into the minutes of the court hearing.

4. Resolution of the petition of a person participating in the case in the preparatory part of the court session does not deprive him of the right to file a similar petition in the future, when considering the case on the merits.

The Plenum of the Supreme Court of the Russian Federation on this issue explained the following: “The court’s refusal to satisfy the petition does not deprive the person participating in the case of the right to apply again, depending on the progress of the trial. The court has the right, on a new petition (in the event of a change in circumstances during further consideration of the case), to make a new ruling on the merits of the stated petition" (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 26, 2008 No. 13 "On the application of the norms of the Civil Procedure Code of the Russian Federation in consideration and resolution of cases in the court of first instance").

5. Persons filing petitions must motivate them, that is, state the circumstances with which they associate the need to satisfy them, their impact on the case.

For some types of petitions, the law provides special requirements for their justification. For example, a person applying to call a witness is obliged to indicate what circumstances that are important for the consideration and resolution of the case can be confirmed by the witness, and inform the court of his name, patronymic, surname and place of residence (Part 2 of Article 69 of the Code of Civil Procedure of the Russian Federation).

The petition to request evidence must indicate the evidence, and also indicate what circumstances that are important for the correct consideration and resolution of the case can be confirmed or refuted by this evidence, indicate the reasons preventing the receipt of evidence, and the location of the evidence (Part 2 of Art. 57 Code of Civil Procedure of the Russian Federation).

6. After the petition is announced, the presiding officer ascertains the opinion regarding it of all persons participating in the case.

The petition is resolved by the court; the court's decision on the merits of the resolution of the petition is set out in the ruling. Depending on the issue being resolved by the court, the ruling may be made in the deliberation room or without being removed to the deliberation room.

All determinations subject to independent appeal are adopted in the form of a separate court decision in the deliberation room.

For example, a petition filed by the defendant to transfer the case to the court at his place of residence must be resolved by the court in the deliberation room with a ruling against which a private complaint can be filed (Part 3 of Article 33 of the Code of Civil Procedure of the Russian Federation).

A petition to involve a third party in the case can be resolved by the court without being sent to the deliberation room by issuing a ruling to be entered into the minutes of the court session (Clause 7, Part 2, Article 229 of the Code of Civil Procedure of the Russian Federation), since such a ruling cannot be appealed in appeal procedure.

If necessary, the court has the right to resolve any petition in the deliberation room; in this case, the determination is made not in the form of a protocol entry, but by a separate court ruling. Petitions on the most complex issues are resolved in this manner. For example, a ruling on the appointment of an examination cannot be appealed, but it cannot be assigned by a protocol ruling. The requirements for the content of a ruling on the appointment of an examination include an extensive list of information that the court must reflect in such a ruling (Article 80 of the Code of Civil Procedure of the Russian Federation); this ruling must be sent to the expert. Therefore, a petition to appoint an examination must be resolved in the deliberation room, and a petition to refuse to appoint an examination can be resolved orally by the court without being removed to the deliberation room, with the contents of the ruling being entered into the minutes of the court session.

7. Resolution of petitions of persons participating in the case, submitted at subsequent stages of the trial, is carried out in the manner established by the commented article, including substantiation of the petition by the person filing it, hearing the opinions of other persons participating in the case, making a determination based on the results of resolving the petition.

For example, the Plenum of the Supreme Court of the Russian Federation explained that after the adoption of the final judicial act on the case, a person participating in the case has the right to apply to the court with a statement on the issue of legal costs incurred in connection with the consideration of the case, the compensation of which was not claimed during its consideration . Such an issue is resolved by the court in a court hearing according to the rules provided for in Art. 166 Code of Civil Procedure of the Russian Federation. Based on the results of its resolution, a ruling is issued (clause 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 21, 2016 No. 1 “On some issues of application of the legislation on reimbursement of costs associated with the consideration of the case”).

In the manner provided for in Art. 166 of the Code of Civil Procedure of the Russian Federation, participants in the process have the right to file a petition to include in the case materials of audio recordings, photographs, video recordings, filming, which were obtained as a result of recording the progress of the trial (clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 13, 2012 N 35 “On openness and transparency of legal proceedings and access to information about the activities of courts”).

Comment source:

“COMMENTARY TO CHAPTER 15 “JUDICIAL PROCEEDINGS” OF THE CIVIL PROCEDURE CODE OF THE RUSSIAN FEDERATION OF NOVEMBER 14, 2002 No. 138-FZ”

N.F. Nikulinskaya, 2017