The promise is what has been promised or assured. In court proceedings, a promise is to ensure that the witness makes a truthful statement. In Poland, the word "oath" is not used in this situation.
Regulations regarding witness hearing are included in the Polish Code of Criminal Procedure and special regulations, such as the Act on the Crown Witness, as well as in the Code of Civil Procedure.
Court in Poznań, Poland
How does it work in practice?
Before proceeding to the hearing, the judge asks the witness to approach the "barrier", which is located in the middle of the room, in front of the referee's table. The hearing begins by asking the witness questions on her/his personal data, such as forename, surname, age, profession, place of residence, prior criminal record for perjury or issued acts of indictment against her/him, as well as the relationship to parties (foreign or related). Before the hearing begins, the judge informs the witness on his/her right to refuse testimony and on the criminal responsibility for testifying untruth or concealing the truth. False testimony is a violation of art. 233 § 1 of the Criminal Code: it consist in the testimony of untruth or concealment of the truth and may be committed by intentional act or omission.
The rule is to take the promise from the witness, after instructing him/her about the meaning of this act. The wording of the promise, specified in art. 188. § 1 of the Code of Criminal Procedure and art. 268 of the Code of Civil Procedure, reads:
"Aware of the importance of my words and responsibility before the law, I promise solemnly that I will speak honest truth, without hiding anything from what is known to me."
The witness makes a promise, repeating after the judge (less frequently reading aloud) the text of the promise. In this situation, everyone - including the judges - does stand. Deaf – mute persons make their promise by signing this text or with the help of a sign language interpreter. Witnesses below the age of seventeen do not make promises. The promises are also not taken from persons who have been convicted by a final judgment for false testimony. If there is a need to rehearse the witness, the promise is not being done again.
The testimony is obligatory - unjustified refusal to give evidence or make a commitment may result in the witness being sentenced to a fine, and also the arrest of the witness for a period not exceeding one week. If the witness, after the arrest, gives evidence or promise, or if the case was completed in an instance in which the witness was admitted, the court will release the arrest.
Most often, however, the parties agree to listen to witnesses without a promise. If none of the parties objects to it, the court will withdraw from taking the promise. In practice, it most often looks like the court asks the parties whether they wish to take a promise from a witness. As a rule, the parties or their representatives agree to release the witness from the promise. After obtaining a negative answer, the judge dictates to the protocol: "with the consent of the parties without a promise". The judge then instructs the witness about criminal liability for false testimony. Then the judge begins to question the witness - after lecturing him, but without a solemn promise.
In the Polish courtroom, there is no Bible that you remember from American movies.
Court in Wrocław, Poland
What is more important: an instruction or a promise?
Contrary to what one may think, the promising in the trial, both criminal and civil, does not play a significant role. A much more important element than the promise itself is the prior instruction of the witness by the court about potential criminal liability for submitting false testimonies. The witness bears responsibility for his/her actions regardless of whether he/she made the promise or not. The court is obliged, before the beginning of the hearing, to instruct the witness about criminal liability for making false statements or concealing truths. Granting this instruction is a prerequisite for criminal liability of a witness. This means that the witness is held criminally responsible for any false testimony or concealment of untruth only if he or she was instructed by the court about criminal liability in this respect, and regardless of whether he/she made the promise or not. These are two completely separate issues.
The court instructed you about criminal liability for making false statements, but the court did not take the promise. You lied to the court. Expect criminal proceedings to be initiated against you.
The judge forgot to inform you about criminal liability for making false testimonies, but he took the promise from you. You lied to the court. You can not be held criminally liable.
As you can see, the promise has no meaning - it may or may not take place. Because it is not the very fact of promise, but its solemn form that is meant to make the witness feel the psychological pressure and tell the truth.
Why do Polish attorneys seldom require a promise from a witness?
Because if someone intends to lie in court, he or she will lie. The witness is not brought to court by surprise – he/she has a lot of time to think about what he/she will be asked and how he/she will respond. It is doubtful that the promise will change the intention of the witness.
Because if we believe that a witness can be scared of something, then a better guardian of the truth will be here the instruction on criminal liability for false testimonies.
Because we can harm ourselves. If a witness testifies untruth after making a promise, the prior promise will strengthen his/her credibility.
Because we can make a bad impression, without gaining anything. When we are in a losing position and we are fighting only for a favorable judgment as to its severity, and the witness is a person who is compassionate (cries, personally experiencing the process), we will only exasperate the lion.
The Polish legislator has, moreover, demonstrated a high tolerance towards persons who are not true enough. Article 233 § 5 of the Polish Criminal Code stipulates that the court may apply extraordinary mitigation of punishment and even refrain from imposing it in cases where false testimonies concern circumstances that can not affect the case, and when the offender voluntarily corrects false testimony before the final judgment takes place.
You may also like:
Osiejewicz J. (2017), Komunikacja w procesie cywilnym w ujęciu formalnoprawnym, in: J. Alnajjar (ed.), Komunikacja w organizacjach. Teoria i praktyka, Saarbrücken : Wydawnictwo Bezkresy Wiedzy, p. 249 -272.
Ustawa z dnia 6 czerwca 1997 r. - Kodeks karny, Dz.U. 1997 nr 88 poz. 553.
Ustawa z dnia 17 listopada 1964 r. - Kodeks postępowania cywilnego, Dz.U. 1964 nr 43 poz. 296.
Ustawa z dnia 6 czerwca 1997 r. - Kodeks postępowania karnego, Dz.U. 1997 nr 89 poz. 555.