4. Examination of witnesses
General rule of witness protection
(1) The authority in charge of the proceedings shall have the obligation to protect the witness and the injured party from insults, threats and any other attacks.
(2) A participant in the proceeding or any other person who insults or threatens the witness or injured party or brings his safety into jeopardy in front of the authority in charge of the proceedings, shall be warned or fined by the authority in charge of the proceedings. In case of violence or serious threat, the court shall notify the Public Prosecutor for the purpose of prosecution and in the case the violence or serious threat occurred in the preliminary investigation or investigation before the Public Prosecutor, he himself shall initiate prosecution or inform the Public Prosecutor having jurisdiction about it. Provisions of Article 115 of the present Code shall accordingly be applied regarding any fine(s).
(3) The Public Prosecutor, Investigative Judge, President of the Trial Chamber or the President of the Court may request from police to take special measures for the protection of the witness and injured party.
Examination of a protected witness
(1) If there are circumstances that clearly indicate that the life, health, physical integrity, freedom or any considerable assets of a witness in a criminal proceeding punishable by imprisonment of ten years or any stricter penalty, or persons close to him, would be seriously threatened due to his testimony and answers to some questions, the court may decide to grant this person the status of a protected witness and order a special method of examination of this witness in the criminal proceedings in order to prevent his identity from being disclosed during the proceedings.
(2) The decision referred to in paragraph 1 of the present Article may exceptionally be made in the case of criminal proceedings for a criminal offense punishable by imprisonment of four years or any stricter penalty, if special circumstances indicate that the witness or persons close to him may be exposed to the threat referred to in paragraph 1 of the present Article, and an alternative method of protection of a witness would be either impossible or considerably more difficult.
(3) The special way of examination of a protected witness includes one or several special protective measures:
1) closed trial;
2) alteration, removal from the record or ban on the disclosure of any data referring to the witness’s identity;
3) withholding of any data referring to the witness’s identity;
4) examination of the witness under a pseudonym;
5) concealment of the face of the witness;
6) testifying from a separate room through voice-distortion devices;
7) examination of the witness in a room outside the courtroom, in another place in the country or abroad, communicated to the courtroom by means of the picture and sound transmission devices, with the possibility of using voice- and image-distortion devices.
(4) When special protection measures include the use of technical devices, a skilled professional person shall handle these devices under the supervision of the authority in charge of criminal proceedings.
(5) Examination in the way referred to in paragraph 3, item 7 of the present Article may be also carried out when the presence of the witness or injured party at the trial cannot be ensured, and such an examination may be carried out also through international legal assistance in criminal matters.
Ruling on granting a person the status of a protected witness
(1) The court may rule to grant the status of a protected witness at the request of a person who either should be examined as a witness or has already been examined as a witness in the previous stages of the proceedings, or ex officio, i.e. at the request of a party and with the consent of the person who should be granted such a status. The request must be in writing and substantiated and, exceptionally, upon the commencement of the trial, a witness may make such a request verbally, at the time
the court decides on the exclusion of public on which a special record shall be made.
(2) The request referred to in paragraph 1 of the present Article shall be filed in a sealed envelope bearing the marking: “witness protection – official secret – confidential.” The request shall contain: personal data on the person who should be examined as a witness, or on the witness; description and statutory title of the criminal offense which constitutes the subject matter of the proceedings in connection with which the person should be examined; circumstances to which the testimony would most likely refer; circumstances that result in the serious threat referred to in Article 117, paragraph 1 of the present Code, or due to which the condition referred to in Article 117, paragraph 2 of the present Code has been met.
(3) The court shall make the decision referred to in paragraph 1 of the present Article after assessing the probable importance of witness’s testimony for the proceedings and seriousness of the threat referred to in Article 117, paragraph 1 of the present Code, or fulfillment of conditions referred to in Article 117, paragraph 2 of the present Code, and for this purpose the court shall schedule a separate hearing which shall be attended by the witness to whom the request refers and the parties. Immediately upon the conclusion of this hearing, the court shall decide on the status of protected witness and inform the persons who have attended the hearing verbally about the contents of its decision. Once the court renders a ruling granting the protected witness status, it shall explicitly warn the present persons of their obligation to keep the information on the identity of the witness a secret and of the consequences of violation of this obligation.
(4) In its ruling on awarding the status of protected witness, the court shall specify one or several special protection measures referred to in Article 117, paragraph 3 of the present Code and the way for protecting the information on the identity of the witness in the documents.
(5) The Court shall serve its ruling denying the request referred to in paragraph 1 of the present Article on the person who has filed the request and shall not communicate it verbally.
Keeping a protected witness’s identity secret during the criminal proceedings
(1) Before the examination begins, the protected witness shall be informed that the data referring to his identity shall not be disclosed to anyone, except to the court and the parties, i.e. the authority in charge of the proceedings, and he shall be informed about the special protection measures which shall be applied during his examination.
(2) The authority in charge of the proceedings shall warn all present persons of their obligation to keep secret all information they directly or indirectly learn about the protected witness and persons close to him and of the fact that to divulge this secret constitutes a criminal offense. This warning shall be entered in the record together with the names and surnames of all present persons.
(3) The authority in charge of the proceedings shall forbid any question the answer to which might directly or indirectly disclose the identity of the protected witness.
(4) The protected witness shall sign the record using his pseudonym.
(5) Exceptionally, in especially justified cases, if the authority in charge of the proceedings assesses that the life, health or freedom of the witness have been seriously threatened and that the witness is convincing, the defendant and his lawyer may be denied temporarily and at the latest until the scheduling of the trial all or some information about the identity of the protected witness.
(6) The defendant and his lawyer must be given the opportunity in the proceedings to contest the justifiability of the measure referred to in Article 117, paragraph 3 of the present Code.
Keeping the identity of a protected witness secret in the documents
(1) Data on the identity of a protected witness and persons close to him as well as of some other facts that may directly or indirectly lead to the disclosure of their identities shall be placed in a special envelope bearing the marking “witness protection – official secret – confidential,” sealed by the official seal of the court and given to the Investigative Judge for safekeeping.
(2) The sealed envelope may be opened only by the second instance court when deciding on an appeal against the decision of the first instance court that ended the criminal proceeding. The date and hour of the opening and names of the members of the trial chamber of the second instance court who are familiar with its content shall be written on the envelope. After that, the envelope shall be resealed and returned to the Investigative Judge of the first instance court.
(3) Service on a protected witness shall be made in such a way as to ensure that his identity remains a secret.
(4) Data on the protected witness and persons close to him represent an official secret which must be kept by all persons who learn it in any way and in any capacity.
Protection of data on a protected witness in criminal proceedings instituted as a
result of his testimony
In criminal proceedings instituted as a result of the testimony of a protected witness, the secrecy of information on the protected witness shall be ensured.
Appropriate implementation of some provisions on the protected witness
Provisions of Articles 117 to 121 shall apply, as appropriate, to a suspect, defendant and injured party who also appears as a witness in criminal proceedings.
2. Evidentiary Actions
b) Questioning Witnesses
b) Protection of Witnesses
The authority conducting proceedings is required to protect an injured party or witness from an insult, threat and any other attack.
The public prosecutor or the court will caution a participant in proceedings or other person who, before the authority conducting proceedings insults an injured party or a witness, threatens him or endangers his safety, and the court may also fine him up to 150,000 dinars.
An appeal against a ruling pronouncing a fine is decided on by the panel. The appeal does not stay execution of the ruling.
Upon receiving notification from the police or the court or upon learning about the existence of violence or a serious threat directed at an injured party or a witness, the public prosecutor will undertake criminal prosecution or notify the competent public prosecutor thereof.
A public prosecutor or the court may request that the police undertake measures to protect an injured party or a witness in accordance with the law.
Especially Vulnerable Witness
The authority conducting proceedings may ex officio, at the request of parties or the witness himself, designate as an especially vulnerable witness a witness who is especially vulnerable in view of his age, experience, lifestyle, gender, state of health, nature, the manner or the consequences of the criminal offence committed, or other circumstances.
The ruling determining a status of an especially vulnerable witness is issued by the public prosecutor, president of the panel or individual judge.
If it deems it necessary for the purpose of protecting the interests of an especially vulnerable witness, the authority conducting proceedings referred to in paragraph 2 of this Article will issue a ruling appointing a proxy for the witness, and the public prosecutor or the president of the court will appoint a proxy according to the order on the roster of attorneys submitted to the court by the bar association competent for designating court appointed defence counsels (Article 76).
No special appeal is allowed against a ruling approving or denying a request.
Rules on Examining an Especially Vulnerable Witness
An especially vulnerable witness may be examined only through the authority conducting the proceedings, who will treat the witness with particular care, endeavouring to avoid possible detrimental consequences of the criminal proceedings to the personality, physical and mental state of the witness. Examination may be conducted with the assistance of a psychologist, social worker or other professional, which will be decided by the authority conducting proceedings.
If the authority conducting proceedings decides to examine an especially vulnerable witness using technical devices for transmitting images and sound, the examination is conducted without the presence of the parties and other participants in the proceedings in the room where the witness is located.
An especially vulnerable witness may also be examined in his dwelling or other premises or in an authorised institution professionally qualified for examining especially vulnerable persons. In such case the authority conducting proceedings may order application of the measures referred to in paragraph 2 of this Article.
An especially vulnerable witness may not be confronted with the defendant, unless the defendant himself requests this and the authority conducting proceedings grants the request, taking into account the level of the witness’s vulnerability and rights of defence.
No special appeal is allowed against a ruling referred to in paragraphs 1 to 3 of this Article.
If there exist circumstances which indicate that by giving testimony or answering certain questions a witness would expose himself or persons close to him to a danger to life, health, freedom or property of substantial size, the court may authorise one or more measures of special protection by issuing a ruling determining a status of protected witness.
The measures of special protection include questioning the protected witness under conditions and in a manner ensuring that his identity is not revealed to the general public, and exceptionally also to the defendant and his defence counsel, in accordance with this Code.
Measures of Special Protection
The measures of special protection ensuring that the identity of a protected witness is not revealed to the public are excluding the public from the trial and prohibition of publication of data about the identity of the witness.
The measure of special protection whereby data about the identity of a protected witness is withheld from the defendant and his defence counsel may be ordered by the court exceptionally if after taking statements from witnesses and the public prosecutor it determines that the life, health or freedom of the witness or a person close to him is threatened to such an extent that it justifies restricting the right to defence and that the witness is credible.
The identity of the protected witness withheld in accordance with paragraph 2 of this Article will be revealed by the court to the defendant and his defence counsel no later than 15 days before the commencement of the trial.
In deciding on the measures of special protection referred to in paragraphs 1 and 2 of this Article, the court will endeavour to order a harsher measure only if the purpose cannot be achieved by the application of a more lenient measure.
Initiating Proceedings for Determining Protected Witness Status
The status of a protected witness may be granted by the court ex officio, or at the request of the public prosecutor or the witness himself.
The request referred to in paragraph 1 of this Article contains: the witness’s personal data, data on the criminal offence in connection with which the witness is being examined, facts and evidence indicating that in the case of giving testimony there exists a danger to the life, body, health or property of substantial size of the witness or persons close to him, and a description of the circumstances to which the provision of evidence relates.
The request is submitted in a sealed cover marked “witness protection – strictly confidential” and is submitted during the investigation to the judge for preliminary proceedings, and after the indictment is confirmed, to the president of the panel.
If during his examination the witness withholds the provision of the data referred to in Article 95 paragraph 3 of this Code or his replies to certain questions, or refuses to give testimony, with the explanation that the circumstances referred to in Article 105 paragraph 1 of this Code exist, the court will invite the witness to act within three days in accordance with the provisions of paragraphs 2 and 3 of this Article.
If it deems the withholding of data, replies, or testimony clearly unfounded, or the witness fails to act in accordance with the provisions of paragraphs 2 and 3 of this Article within the prescribed time limit, the court will apply the provisions of Article 101 paragraph 2 of this Code.
Deciding on Determining Protected Witness Status
During the investigation the judge for preliminary proceedings decides on determining protected witness status by issuing a ruling, and after the indictment is confirmed, the panel. The public is excluded from the trial if the decision is taken at that time (Article 363), without the exceptions prescribed by Article 364 paragraph 2 of this Code.
The ruling determining protected witness status contains a pseudonym of the protected witness, the duration of the measure and the manner in which it will be implemented: alteration or erasure from the record of data on the identity of the witness, concealment of the witness’s appearance, examination from a separate room with distortion of the witness’s voice, examination using technical devices for transferring and altering sound and picture.
The parties and the witness may appeal against the ruling referred to in paragraph 1 of this Article.
An appeal against a ruling of the judge for preliminary proceedings is decided on by the panel (Article 21 paragraph 4), and in other cases the panel (Article 21 paragraph 4) of the immediately higher court. A decision on the appeal is rendered within three days of the date of receiving documentation.
Examining a Protected Witness
When the ruling determining protected witness status become final, the court will, by a special order that represents a secret, confidentially notify the parties, defence counsel and the witness about the date, hour and location of the questioning of the witness.
Before the commencement of the questioning the protected witness is notified that his identity will not be revealed to anyone but the court, the parties and the defence counsel, or only to the court and the public prosecutor, under the conditions referred to in Article 106 paragraphs 2 and 3 of this Code, and is informed about the manner in which he will be examined.
The court will caution all those present that they are required to keep confidential data on the protected witness and persons close to him and on other circumstances which may lead to the
exposure of their identities, and that divulging a secret represents a criminal offence. The caution and the names of those present will be entered in the record.
The court will deny any question that requires an answer that might reveal the identity of the protected witness.
If the examination of the protected witness is being conducted using technical means for altering sound and image, they are handled by a professional.
The protected witness signs the minutes with the pseudonym.
Protecting Data on a Protected Witness
Data on the identities of the protected witness and persons close to him and on other circumstances which may lead to the exposure of their identities will be sealed under a separate cover marked “protected witness – strictly confidential”, sealed and submitted for safekeeping to the judge for preliminary proceedings.
The sealed cover may be opened only by a court deciding on a legal remedy against a judgment. The reason, date and hour of its opening and the names of the members of the panel informed about the data referred to in paragraph 1 of this Article will be marked on the cover. The cover will thereafter be resealed, the date and time of resealing being indicated on the cover, and returned to the judge for preliminary proceedings.
The data referred to in paragraph 1 of this Article represent secret data. Besides public officials, all other persons who learn about them in any capacity whatsoever are required to maintain their confidentiality.
Duty of Notification about Special Protection Measures
The police and the public prosecutor are required during the collection of information from citizens to inform them about the special protection measures referred to in Article 106 of this Code.
Analogous Application of Provisions on a Protected Witness
The provisions of Articles 105 to 111 of this Code apply accordingly to the protection of an undercover investigator, expert witness, professional consultant and professional.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(j) The protection of victims and witnesses and the preservation of evidence;