Câteva consideraţii despre testimonium nullitatis în lipsa (sacramentală) a jurământului în procesul civil
Some Considerations On The Testimonium Nullitatis In The (Sacramental) Absence Of The Witness’s Oath In Civil Proceedings

Summary/Abstract: This study examines a single question but pursues it to its very end: what sanction attaches to the absence of the witness’s oath in Romanian civil proceedings? The answer involves four successive distinctions. First, what is actually affected: not the testimony, the means of proof, but the act of administering the evidence. Second, whether the nullity is express or virtual: absent an express provision in Article 319 of the Romanian Code of Civil Procedure, it is virtual and therefore conditional upon proof of prejudice, which is not presumed. Third, whether it is an absolute or a relative nullity: against the public order thesis, it is submitted that the nullity is relative, since the law itself admits unsworn testimony as valid evidence (Article 320 of the Romanian Code of Civil Procedure). Finally, fourth, why the interest protected by the oath – the fairness of the taking of evidence – is of private order? Elements of comparative law – French, Italian, German and Spanish – are also analysed, together with the case law of the European Court of Human Rights, which confirms the conclusion that the witness’s oath is not a condition of the validity of the evidence but a solemnity of its administration.

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