2. Evidentiary Actions
b) Questioning Witnesses
b) Protection of Witnesses
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
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: