Securing a witness's attendance in civil proceedings: law and practice

Abstract

Purpose of the research. The literal content of Articles 69 and 70 of the Civil Procedure Code of the Russian Federation, which govern the summoning and examination of witnesses, is inconsistent with the prevailing judicial practice, under which the burden of securing a witness's appearance is effectively – albeit with certain qualifications – placed on the party requesting the examination. The purpose of this study is to identify the causes of this inconsistency and to propose ways of resolving it. The methodological basis comprises the formal-legal, historical-legal and comparative-legal methods; the material consists of the legal positions of the Constitutional Court of the Russian Federation, the cassation practice of courts of general jurisdiction, and doctrinal sources. Results. As a result of the research, the author proposes the following rule: (1) the court is obliged to summon a witness if the party requesting the summons has demonstrated that the witness's testimony is, in all probability, relevant to the case; (2) the court is obliged to examine a witness who has appeared at the initiative of a party, except where such testimony would be plainly inadmissible or irrelevant. This rule is consistent both with the principles of civil procedural law and with the analogous rules governing the submission and discovery of evidence.