Giving evidence in legal proceedings
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Anyone who is not a party to the proceedings may be asked to give evidence, provided that they are competent to do so.
Special witnesses
Minors
In principle, minors can give evidence. It is up to the judge to assess, on a case by case basis, whether the minor has sufficient understanding to give evidence in legal proceedings in light, in particular, of the age and maturity of the child, their level of understanding, the circumstances of the case and the nature of the dispute.
For example: an adolescent who was over eleven years of age at the time of a road traffic accident, and over fourteen years of age at the time of giving evidence, was deemed—in principle—to be sufficiently mature and able to understand the sequence of events relating to the accident.
Where applicable, the judge can also hear the minor's evidence without the minor having to take an oath. This enables the judge to take the child's evidence, without such evidence being binding. In criminal proceedings, children under the age of fifteen are always heard without taking an oath.
Family members
Contrary to popular belief, family members are also allowed to give evidence when one of their close relatives is involved in legal proceedings.
In fact, children, parents, siblings, spouses, etc. are by no means incompetent to give evidence in disputes involving their close relatives.
The case of spouses giving evidence must, however, be qualified: evidence given by a wife is only admissible if she has no personal interest in the outcome of her husband's case, and vice versa. Such would be the case if a husband and wife were married under the community-of-property regime and one of the them had a clear financial interest in the outcome of the other's legal proceedings.
For example: a father who is a passenger in a car driven by his son may give evidence if the son is involved in a road traffic accident whilst the father is in the car.
Exceptions: descendants (i.e. children and grandchildren), as well as their spouses or partners, can never give evidence in relation to the grievances raised by a spouse in support of a divorce petition.
For example: it would never be admissible for a wife who is petitioning for divorce to ask her children—whether minors or adults—to give evidence to support the case against her husband.
Obligation to give evidence
Giving evidence in legal proceedings is a legal obligation.
When someone is summoned by a judge to appear as a witness in court, they cannot refuse or they may incur a fine.
Employees are not obliged to take leave in order to appear in court. Absence from the work place is not deemed to be unjustified and counts as effective paid working time.
Only spouses, blood relatives or relatives by marriage in the direct line of descent—children, grandchildren, grandparents—of one of the parties may refuse to appear as a witness.
By way of an exception, witnesses can seek to have the date on which they are due to appear postponed if there are serious grounds for doing so (e.g. illness, holiday booked well in advance, etc.).
Witnesses can only give evidence in relation to facts of which they have personal knowledge. They are obliged to tell the truth. Giving false evidence constitutes a criminal offence punishable by imprisonment.
Procedure for giving evidence
Oral testimony
In line with normal practice, giving evidence consists of making an oral statement before the court. Before giving their statement, witnesses must take an oath to tell the truth: the judge asks them to raise their right hand and say "I do swear (Je le jure)".
Witnesses give their statement in one of the country's 3 official languages—Luxembourgish, German or French—whichever is their best language. For individuals who are unable to speak any of the country's 3 official languages, a sworn interpreter must be summoned to appear at the hearing in order to interpret their account of events.
In criminal proceedings, evidence is given during the course of the trial. It is given in open court attended by all the parties (accused, victim, lawyers) and the general public (spectators, press).
Although all the parties are present at the witness hearing, only the judge may communicate with the witness. Obviously, the parties are able to ask the witness questions, but they must address their questions to the judge who, if the question is deemed relevant, will put them to the witness.
In civil proceedings, evidence is usually given during a witness hearing, which is also held in court. Unlike giving evidence in criminal proceedings, statements are not given during a public hearing, but during a witness hearing which is held in a room that is separate from the court room and is attended only by the judge, the clerk of the court and the parties (or their lawyers).
Oral testimony is recorded by the clerk of the court as the witness answers the questions. At the end of the hearing, the clerk of the court reads the statement out in full to the witness. If all is in order, the judge will ask the witness to sign the statement. The witness is not, however, given a copy of the statement.
Witnesses are entitled to receive a fee which is intended to compensate them for travel expenses. The fee is calculated according to the distance between the court and the witness's home address and is never more than (+/- EUR 20.00).
Written witness statements
In civil proceedings, the parties to the proceedings often contact witnesses to ask them to write a statement.
This statement produces the same effects as an oral testimony, provided that it meets a certain number of legal requirements.
To be valid, the statement must be written entirely in the witness's own hand (not typewritten). It must be signed and dated. Witnesses must give their details (surname, given names, date and place of birth, domicile, profession). The witness statement must also specify that it has been written with a view to being produced in court and that the witness is aware that giving a false statement may result in criminal sanctions. Finally, a copy of the witness's identity card must be attached to the statement.
As with oral testimony, the written statement can be made in Luxembourgish, German or French, the choice being at the discretion of the witness.
