Tutela penal de la intimidad del testigo frente al delito de falso testimonio

Abstract

The importance of the testimonial evidence in the conviction or acquittal of the defendant is beyond doubt. The final outcome of the trial often depends on the meaning of the testimony, for or against the defendant. The problem arises when the testimony is associated with some illegitimate limitation of the witness’s fundamental rights. In this procedural scenario, the judge should intervene to avoid possible abuses through the filter of impertinence in the broad sense. If the judge does not proceed in the sense indicated and allows a question to be asked that violates the witness’s privacy or dignity, subjecting him to invasive questions, his possible reaction by not telling the truth should not cause any harm to the witness, even less so of a criminal nature. The proposal advocated is as follows: if the witness’s answer can objectively be considered as a means of protecting the fundamental right, it will act as a limit to the possibility of punishing the witness for the crime of false testimony.