A guide to the UPC and the UP - Flipbook - Page 341
Member States whose courts have criminal jurisdiction in the case of giving false evidence. 96
This provision mirrors that found in art.6 Rules of Procedure - Supplementary Rules of the
Court of Justice. 97 Attached to these Rules of Procedure at Annex III is a list of the competent
authorities in Member States to which the CJEU should refer the matter. The matter will then
have to be taken up by the relevant authority.
17-63 The Hague Evidence Convention does not address false testimony given by a witness.
Whether any action could be taken against the witness would therefore depend upon whether
the relevant national prohibition against perjury applies to foreign proceedings. If, for instance,
Dutch law were applicable, then art.207a Dutch Criminal Code would apply. This provision sets
out sanctions for perjury before an international court (e.g. the Court) in cases where a
statement under oath (or an affirmation or a promise as a substitute for such oath) is
required by or pursuant to a treaty to which the Netherlands is a contracting party (e.g. UPCA).
In Germany, false testimony may be punished according to s.153 German Criminal Code
(imprisonment from three months to five years), while for perjury, as per s.154 German
Criminal Code, a sanction of imprisonment of not less than one year can be imposed.
In England and Wales, perjury is an indictable only offence; the maximum penalty is two years’
imprisonment or an unlimited fine or both; under the Perjury Act 1911 a statement made by a
person sworn in England for the purposes of a judicial proceeding in a tribunal of any foreign
state shall be treated as a statement made in a judicial proceeding in England. If the witness
was guilty of perjury under the relevant national law, applying that law to conduct occurring
within another jurisdiction would then need to be justified. It seems likely that this will be
more challenging for statements made outside the EU than inside. Whether or not the witness
could be punished for providing false evidence may affect the relative weight the Court gives
to that evidence.
17-64 It is not clear from the RoP how much use the Court will make of these powers and whether a
witness failing to comply with their duties will face any sanction beyond their evidence being
given less weight. It will probably depend upon the gravity and extent to which the witness has
perjured themselves. It is also not clear to what extent the Court may consider the party calling
a witness is responsible for their behaviour. 98
Expert Evidence
17-65 Expert opinions can be introduced into the proceedings by virtue of art.53(1)(e) UPCA and
rr.170(1)(b) and 170(2)(e) RoP. Art.57(1) UPCA refers to the right of the Court to appoint Court
experts but makes it clear that this right is without prejudice to the possibility for the parties
to produce expert evidence and indeed r.181(1) RoP specifies that parties are generally free to
provide any expert evidence they consider necessary. However, the RoP treat Court appointed
experts and party appointed experts separately.
17-66 The provision for Court appointed experts and party appointed experts reflects the differing
nature of the inclusion of expert evidence in the courts of the different Contracting Member
States. For example, in France, to the extent that any formal expert evidence is allowed into
the proceedings, it will be done using a court appointed expert. The expert will prepare a
written report, having met with the parties, and only rarely will the expert give oral evidence.
Contrast this with the procedure in common law jurisdictions where the parties appoint their
own experts. The experts nevertheless owe a duty to the court. 99 They prepare detailed reports
96
97
98
r.179(4) RoP. There is no equivalent rule to r.179(4) RoP in relation to authorities outside the EU. Nevertheless, it seems that
the Court could elect to complain to the relevant national authority outside the EU of its own volition.
OJ L 32, 1.2.2014, p.37.
r.3.1 Code of Conduct for Representatives refers to the obligation on representatives to inform witnesses of their obligation
to tell the truth and of their liability under applicable national law in the event of any breach.
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A Guide to the UPC and the UP 331
