Protection of safety of physical or psychological well-being of victims, witnesses and families

Ukraine

Code of Criminal Procedure of Ukraine 2012 (2015)

Section I

GENERAL PROVISIONS

Chapter 3

PARTICIPANTS TO THE PROCESS, THEIR RIGHTS AND DUTIES

Article 52-1. Ensuring security of persons who participate in criminal proceedings

If a real threat to life, health, home, or property is present, persons who participate in criminal proceedings are entitled to have their security ensured.
With appropriate grounds present, the following persons have the right to have their security ensured:
1) person who reported the crime to a law enforcement authority or otherwise participated in detecting, preventing, suppressing, and resolving a crime or assisted therein;
2) victim or his/her representative in the criminal case;
3) suspect, the accused, defense counsels, and legal representatives;
4) civil plaintiff, civil defendant, and their representatives in the case related to compensation of damage caused as a result of crime;
5) witness;
6) expert, specialist, translator, and attesting witness;
7) family members and close relatives of the persons refereed to in subparagraphs 1-6 of the present Article if there are attempts to exert influence on the participants to criminal proceedings through the use of threats or any other illegal actions.
The inquiry agency, investigator, prosecutor, or court, having received the application or communication that security of the person referred to in the paragraph 2 of the present Article is threatened, are required to verify such application (communication) and, within three days, and in urgent situations – immediately, to take decision to enforce or deny measures of security. Dependently on what decision has been taken, they pass a motivated decision or ruling and refer it to the authority in charge of enforcing measures of security.
Such decision or ruling is binding upon the said authority.
The authority in charge of enforcing measures of security establishes the list of required measures and ways of enforcing the same being guided by specific circumstances and the need to eliminate the threat present. The person under protection is informed on measures of security chosen, modalities of their enforcement, and rules for the use of documents and property issued to ensure security.
If the application (communication) about a threat to the person referred to in paragraph 2 of the present Article contains information on a crime, the inquiry agency, investigator, prosecutor, court or judge takes, as prescribed in Articles 94, 98, and 99 of the present Code ( 1002-05 ), decision on instituting or denying instituting criminal proceedings or on referring the application (communication) to the competent authority.
The applicant is immediately informed on the decision taken.
The authority in charge of enforcing measures of security informs in writing the inquiry agency, investigator, prosecutor, court or judge who conducts proceedings in the case about measures taken and their results.
(Article 52-1 is added by Law No 1381-XIV ( 1381-14 ) of 13.01.2000).


Article 52-2. Rights and duties of persons in whose respect measures of security are enforced

Persons under protection may:
1) submit application for measures of security or for their recall;
2) be aware of what measures of security are enforced to them;
3) request that the inquiry agency, investigator, prosecutor, court takes additional measures of security or recall measure being enforced;
4) challenge illegal decisions or acts by authorities in charge of measures of security in a higher authority, prosecutor, or court.
Persons under protection are required to:
1) respect conditions under which measures of security are enforced and legal requests of authorities in charge of security measures;
2) immediately inform the said authorities on each threat or illegal actions against them;
3) dispose of the property and documents issued to them in temporary possession by the authority in charge of security measures with full respect for rules established by law. (Article 52-2 is added by Law No 1381-XIV ( 1381-14 ) of 13.01.2000).


Article 52-3. Non-disclosure of information on the person in whose respect security measures are
carried out

Non-disclosure of information on the person under protection may be ensured through limiting information thereon in materials of verification (applications, explanations, etc.), as well as in records of investigative actions and of court sessions. The inquiry agency, investigator, prosecutor, court (judge), having made a decision to enforce security measures, takes a motivated decision, ruling to change first name, last name and patronymic of the protected person for a pseudonym. Thereafter, only this pseudonym is mentioned in procedural documents while real first name, last name and patronymic (year, month, and place of birth, family status, place of employment, occupation, or position held, place of residence, and other biographical particulars containing information on the protected person) are mentioned only in the decision (ruling) on the change of biographical particulars. Such decision (ruling) is not attached to the records of the case and is kept separately by the authority which conducts proceedings in criminal case. If first name, last name and patronymic of the protected person are changed for a pseudonym, records of investigative actions and other documents containing real particulars of such person are removed from records of the case and kept separately while copies of such documents with real name changed for the pseudonym are attached to records of the case.
Information on security measures and protected persons constitutes information with restricted access. Provisions of paragraph 2 of Article 48, of Articles 217 – 219 and 255 of the present Code (1003-05) do not apply to documents containing such information. (Article 52-3 is added by Law No 1381-XIV ( 1381-14 ) of 13.01.2000, as amended by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001 ).


Article 52-4. The way in which security measures are recalled

Security measures may be recalled in connection with expiration of the period for which a specific security measure has been enforced; elimination of the threat to life, health, home and property of protected persons; systematic neglect of lawful requests of the authority in charge of security measures by the person under protection if the latter was warned about the possibility of such recall.
The following may be the ground for recalling security measures enforced to participants of criminal proceedings, their family members, and close relatives: application of the participant to criminal proceedings, his family member or close relative in whose respect security measures have been enforced; receipt of reliable information that the threat to life, health, home and property of the said persons has been eliminated.
With the sufficient grounds for recalling security measures present, the inquiry agency, investigator, prosecutor, court (judge) makes a motivated decision or ruling to recall such measures.
Decision to recall security measures is brought to the notice of the persons in whose respect such measures have been enforced, in written within one day.
(Article 52-4 is added by Law No 1381-XIV ( 1381-14 ) of 13.01.2000).


Article 52-5. Challenging decisions to deny the enforcement of security measures or to recall the same

Decision of the inquiry agency or investigator to deny the enforcement of security measures or to recall the same may be challenged with the appropriate prosecutor or local court in the place where the case is prosecuted.
The judge immediately considers the challenge and records of the case, if necessary hears the inquirer, investigator, opinion of the prosecutor and thereafter, dependently upon grounds for making such a decision, takes decision to enforce measures of security or recall the same or deny the same.
Judge’s decision to dismiss the challenge may be appealed against before the court of appeals within three days after such decision has been made.

Section III

PROCEEDINGS IN TRIAL COURT

Chapter 26

EXAMINATION DURING TRIAL

Article 303. Examining a witness

To ensure security of the witness to be examined, the court (judge), upon its own initiative or upon motion of the prosecutor, defense counsel or petition of the witness himself/ herself, passes a motivated ruling to examine the witness concerned with the use of technical means from another premise, including outside court’s building, and to give participants to the process the right to listen his/her testimonies, ask questions and hear answers thereto.

If there is a risk that witness’s voice can be identified, examination may be accompanied by acoustic noises.

If it appears impossible to examine the witness with the use of technical means, the court (judge) examines him/her in the absence of the defendant. Examined witness is removed from the courtroom.

After the defendant has returned in the courtroom, presiding judge makes him/her aware of testimonies which were given by the witness and gives him/her the possibility to provide explanations with regard to such testimonies.

Rome Statute

Article 87 Requests for cooperation: general provisions

4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.