Protection des témoins – procédures nationales

Kosovo

Kosovo - Criminal Procedure Code 2022 EN

Article 129
2. During the investigative stage, the state prosecutor shall interview protected witnesses and cooperative witnesses while ensuring the appropriate safety and security for the protected or cooperative witnesses.

Article 217
Petition for Protective Measure or Anonymity

1. At any stage of the proceedings, the state prosecutor, defendant, defense counsel, injured party or victim, victim advocate or victim’s representative, cooperative witness or witness may file a written petition with the competent judge for a protective measure or an order for anonymity if there is a serious risk to an injured party, cooperative witness, witness or his family member.
2. The petition shall contain a declaration of factual allegations. The petition and declaration shall be filed in a sealed envelope and only the competent judge over the stage of the proceedings and the state prosecutor may have access to the sealed contents.
3. After receipt of the petition, the competent judge may order appropriate protective measures for an injured party or victim, cooperative witness or a witness, or if he deems it necessary prior to making a decision on the petition, convene a closed hearing to hear further information from the state prosecutor, the defendant, the defense counsel, the injured parties or victim, victim advocate or victim’s representative, cooperative witness or the witnesses. In the case of a petition requesting an order made pursuant to Articles 219 and 220 of this Code, the competent judge shall convene a hearing in closed session.
4. The competent judge may make an order for a protective measure for an injured party, cooperative witness or witness where he determines that:
4.1. there exists a serious risk to the injured party, cooperative witness, witness or his family member; and
4.2. the protective measure is necessary to prevent serious risk to the injured party, cooperative witness, witness or his family member.
5. The state prosecutor shall be immediately notified by the competent judge of any petition made by the defendant, defense counsel, injured party or victim, victim advocate or victim’s representative, cooperative witness or witness and is entitled to make recommendations and statements regarding the facts to the competent judge at a hearing and in writing if there is no hearing ordered by the competent judge.
Article 218
Order for Protective Measures
6. The competent judge may order such protective measures as he considers necessary, including but not limited to:
1.1. omitting or expunging names, addresses, place of work, profession or any other data or information that could be used to identify the injured party, cooperative witness or witness;
1.2. non-disclosure of any records identifying the injured party, cooperative witness or witness;
1.3. efforts to conceal the features or physical description of the injured party, cooperative witness or witness giving testimony, including testifying behind an opaque shield or through image or voice-altering devices, contemporaneous examination in another place communicated to the courtroom by means of closed-circuit television, or video-taped examination prior to the court hearing with the defense counsel present;
1.4. assignment of a pseudonym;
1.5. closed sessions to the public:
1.6. orders to the defense counsel and the defendant not to disclose the identity of the injured party, cooperative witness or witness or not to disclose any materials or information that may lead to disclosure of identity;
1.7. temporary removal of the defendant from the courtroom if a cooperative witness or witness refuses to give testimony in the presence of the defendant or if circumstances indicate to the court that the witness will not speak the truth in the presence of the defendant; or
1.8. any combination of the above methods to prevent disclosure of the identity of the injured party, cooperative witness or witness.
7. Other provisions of this Code shall not apply where they conflict with protective measures under paragraph 1. of this Article.
8. An order for a protective measure shall be in writing and shall not contain any information which could lead to the discovery of the identity of the injured party or victim, cooperative witness, witness or his family member, or which could reveal the existence of, or expose to serious risk, the operational security of ongoing and confidential police initial actions.
9. Once a protective measure has been ordered in respect of an injured party, cooperative witness or witness, the petitioning party may subsequently request an amendment of a protective measure. Only the competent judge of the stage of the proceedings may amend or rescind the order, or authorize the release of protected material to another judge for use in other proceedings. If, at the time of a request for amendment or release, the original court no longer has jurisdiction over the case, the competent judge at the court which has jurisdiction may authorize such amendment or release, after giving written notice to, and hearing any argument of, the state prosecutor.
Article 219
Order for Anonymity from the Public and from Injured Party or Victim
10. Where protective measures under Article 218, paragraph 1. of this Code are insufficient to guarantee the protection of a witness proposed by the defense, the competent judge may in exceptional circumstances make an order for anonymity whereby a witness proposed by the defense shall remain anonymous to the public, the injured party or victim, victim advocate or victim’s representative.
11. Before making an order for anonymity, the competent judge shall conduct a hearing, in a closed session, at which the witness at issue and other persons deemed necessary, such as police and military personnel providing security, shall be examined. Apart from these persons, only the state prosecutor, essential court and prosecution personnel and the defense counsel may be present.
12. The competent judge can only issue an order for anonymity if he first finds that:
3.1. there exists a serious risk to the witness or his family member and the complete anonymity of the witness is necessary to prevent such serious risk;
3.2. the testimony of the witness is relevant to a material issue in the case so as to make it unfair to compel the defense to proceed without it;
3.3. the credibility of the witness has been fully investigated and disclosed to the judge in a closed session; and
3.4. the need for anonymity of the witness to provide justice outweighs the effect of the interest of the public or the injured party in knowing the identity of the witness in the conduct of the proceedings.
Article 220
Order for Anonymity from the Defendant
13. Where protective measures provided under Article 218, paragraph 1. of this Code are insufficient to guarantee the protection of an injured party or victim, cooperative witness or witness not proposed by the defense, the competent judge may in exceptional circumstances make an order for anonymity whereby the injured party, cooperative witness or witness shall remain anonymous to the defendant and the defense counsel.
14. The state prosecutor shall request an order for anonymity from the defendant only by a written motion filed under seal which describes facts that demonstrate that:
2.1. there exists a serious risk to the injured party, cooperative witness or witness who would be subject to the order for anonymity, and
2.2. anonymity would prevent the serious risk to the injured party, cooperative witness or witness.
15. A court shall not issue an order under this Article based on a request under paragraph 2. of this Article which is based on a general description of danger to witnesses in similar cases.
16. Before making an order for anonymity, the competent judge shall conduct a hearing, in a closed session, at which the injured party, cooperative witness or witness at issue and other persons deemed necessary, such as police or military personnel providing security, shall be examined. Apart from these persons, only the state prosecutor, and essential court and prosecution personnel may be present.
17. The competent judge can only issue such order for anonymity if he finds that:
5.1. there exists a serious risk to the injured party, cooperative witness or witness or to his family member and the complete anonymity of the injured party, cooperative witness or witness is necessary to prevent such serious risk;
5.2. the testimony of the injured party, cooperative witness or witness is relevant to a material issue in the case so as to make it unfair to compel the prosecution to proceed without it;
5.3. the credibility of the injured party, cooperative witness or witness has been fully investigated and disclosed to the competent judge in a closed session; and
5.4. the need for anonymity of the injured party, cooperative witness or witness to provide justice outweighs the interest of the defendant in knowing the identity of the injured party, cooperative witness or witness in the conduct of the defense.
Article 221
Form of Order for Anonymity
18. An order for anonymity shall be in writing and shall not contain any information which could lead to the discovery of the identity of the injured party, cooperative witness, witness or his family member or which could reveal the existence of or expose to serious risk the operational security of ongoing and confidential police initial actions.
19. Information in the record of the closed session shall be removed from the record and sealed and stored as an official secret immediately after the identification and prior to examination of the injured party, cooperative witness or witness.
20. The restricted data may be inspected and used by the state prosecutor and the competent judge only in an appeal against an order issued under Article 219 or 220 of this Code. An appeal against an order for anonymity and the use of methods to prevent disclosure of identity to the public, injured parties or victim, victim advocate or victim’s representative, witnesses, defense counsel and the defendant may be made to a review panel, if the order has been issued by a pretrial judge. Otherwise it may only be appealed in an appeal of the judgment.
Article 222
Prohibition of Questions that may Reveal Identity
The court shall prohibit all questions to which the answers could reveal the identity of an injured party, cooperative witness or witness protected by a protective measure or anonymity.
Article 223
Witness Protection
Special and extraordinary measures, ways and procedures for witness protection and cooperative witnesses are governed by the relevant Law on Witness Protection.
Article 224
Additional Protective Measures in Cases of Domestic Violence
In cases of domestic violence, the court may impose the measures specified in the relevant Law on Protection Against Domestic Violence and also any measures as provided in Article 171 of this Code.

Article 289
1.4. protecting injured parties, cooperative witnesses and witnesses as provided for in Chapter XIII of the present Code.

Article 336

Witnesses Subject to Special Protection

1. The examination of a witness under the age of sixteen (16) years of age who is a victim of a criminal offense under Chapter XX of the Criminal Code is not permitted in the main trial if his testimony has already been taken under Article 129 or 147 of the present Code and if the trial panel recognizes that a new examination is not necessary. If such witness is examined, the trial panel may decide to exclude the public.

2. If a child is present at a hearing as a witness or an injured party, he is taken out of the courtroom as soon as his presence is no longer necessary.

3. Measures for the protection of injured parties and witnesses as provided for in Chapter XIII of the present Code are observed during the main trial.

Article 340
2. The single trial judge or presiding trial judge may order, on the motion of the parties or ex officio, that the examined witnesses and expert witnesses be removed from the courtroom and then called in and examined again in the presence or in the absence of other witnesses and expert witnesses.

Statut de Rome

Article 93 Autres formes de coopération

1. Les États Parties font droit, conformément aux dispositions du présent chapitre et aux procédures prévues par leur législation nationale, aux demandes d'assistance de la Cour liées à une enquête ou à des poursuites et concernant :

j) La protection des victimes et des témoins et la préservation des éléments de preuve ;