CHAPTER XXI - THE MAIN TRIAL
Section 7 – EVIDENTIARY PROCEDURE
Protection of Witnesses from Insults, Threats and Attacks
The judge or the presiding judge is obligated to protect the witness from insults, threats and attacks.
The judge or the presiding judge shall warn or fine a participant in the proceedings or any other person who insults, threatens or jeopardizes the safety of the witness before the Court. In the case of the fine, provisions of Article 242(1) of this Code shall be applied.
In the case of a serious threat to a witness, the judge or the presiding judge shall inform the Prosecutor for the purpose of undertaking criminal prosecution.
At the petition of the parties or the defense attorney, the judge or the presiding judge shall order the police to undertake measures necessary to protect the witness.
WITNESS PROTECTION MEASURES
Witness protection hearing
In exceptional circumstances, where there is a manifest risk to the personal security of a witness or the family of the witness, and the risk is so severe that there are justified reasons to believe that the risk is unlikely to be mitigated after the testimony is given, or is likely to be aggravated by the testimony, the Court may conduct a witness protection hearing in accordance with Articles 15 through 23 of this Law.
Motion for a witness protection hearing
(1) Either ex officio or upon a motion filed by the Prosecutor, the suspect, the accused, or his defense attorney, the Court may determine whether a witness protection hearing is justified.
(2) The motion must comprise:
a) information establishing the identity of the witness and the proceedings in which the witness is to testify;
b) facts indicating that the personal security of the witness or the family of the witness is at risk through his participation in the proceedings; and
c) circumstances about which the witness is to be examined.
(3) The motion must be submitted to the Court in a sealed envelope clearly indicating on its outside that it is a motion for witness protection hearing under Articles 14 through 23 of this Law.
(4) The envelope with the request for a witness protection hearing shall be delivered to the Court President without delay. The Court President shall forward the motion to the respective trial chamber or, where no indictment has been confirmed so far, shall issue an order naming the President and two additional members of the panel that has to deal with the matter.
(5) The Court may summon the person who put forward the proposal to further explain or clarify the facts relevant to the request.
Determination of the need for hearing
(1) On receipt of the motion for a witness protection hearing, the Court shall, without delay and not later than within 15 days following the day the motion is received, determine whether such a hearing is justified.
(2) The Court shall base its determination on:
a) the facts in the motion for hearing of a protected witness; and
b) the documentation before it of the criminal case.
(3) The Court’s decision pursuant to paragraph 1 of this Article shall be communicated to the parties without delay and not later than within 3 days following the day the motion is decided. The aforementioned communication shall be made in writing but shall not contain the name or any identifying information related to the witness who was the subject of the request.
Appeal against the decision
(1) An appeal against a decision pursuant to Article 16 of this Law shall be allowed. A request for appeal must be made in writing, within 7 days of the Court’s decision, and in accordance with the procedure prescribed in Article 15 paragraph 3 of this Law.
(2) Competent Panel of the Appellate Division shall consider the appeal referred to in paragraph 1 of this Article without delay and shall deliver its decision no more than 15 days from the day the appeal is received.
Scheduling of the Hearing
After the decision to hold a witness protection hearing becomes final, the Court shall schedule the date, time, and place of the hearing as soon as practicable.
(1) A witness protection hearing is conducted by the Court in accordance with the provisions of the Criminal Procedure Code of Bosnia and Herzegovina on the hearing of witnesses, unless otherwise stipulated by this Law.
(2) The witness shall be informed that
a) he will be heard as a protected witness;
b) his identity shall not be revealed to any person other than the members of the Court and the minute taker of the Court;
c) if designated as a protected witness he shall not appear in person before the Court at any hearing other than the witness protection hearing; and
d) he can not be compelled to answer questions that would indicate his identity or the identity of the members of his family.
(3) The Court shall hear a witness in detail on the circumstances suggested by the party making the motion and on all other circumstances the Panel considers necessary.
(1) The record of the witness protection hearing shall not contain information relating to the identity of the protected witness.
(2) The record shall employ a pseudonym for the witness, as determined by the Court, which shall be used during the criminal proceedings and in the decisions of the Court.
(3) The members of the Court and the minute taker of the Court shall sign the record of the witness protection hearing.
(4) The Court shall ensure the confidentiality of the record by:
a) keeping the record separate from all other documentation of the criminal case in a secure place;
b) returning the record to the secure place after its use at the appropriate hearing in the criminal procedure and when the decision has become final; and
c) providing for long-term archiving of the record in a manner that limits access to the document only to the President of the Criminal Division for such period as may be determined to be necessary, but in any event not exceeding thirty years, following upon the day the decision became final.
Use of Protected Witness Testimony
(1) At the main trial of the criminal case, the Court shall have the testimony of the protected witness read out loud from the record of the witness protection hearing.
(2) The Court shall not need the agreement of the parties in the case to have the testimony read out loud.
(3) With the consent of the Prosecutor and the accused and his defense attorney, the judge or the Panel may waive the reading of the testimony out loud.
(4) The witness may not be called to give testimony other than the testimony at the witness protection hearing as prescribed under Article 19 paragraph 2 (c) of this Law.
(1) The Court may, either ex officio or upon the motion of the Prosecutor or of the accused or his defense attorney, decide that the protected witness be heard on additional questions:
a) to clarify previously given testimony; or
b) relating to information that was not covered by the previously given testimony and are material to the case.
(2) The Court shall conduct such additional witness protection hearing, in the manner provided for in Article 18 – 20 of this Law, as is necessary for the full and proper establishment of facts. The questions and the answers are recorded and read out in the manner provided for in Article 21 of this Law.
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: