TITLE III
EVIDENCE AND MEANS OF EVIDENCE

CHAPTER III
MEANS OF EVIDENCE

Section III
Statements of the witnesses

Art. 86(1) – If there is evidence or solid indications that by declaring the real identity of the witness or his/her place of domicile or residence the life, corporal integrity or freedom of the latter or of another person might be endangered, the witness may be given permission not to declare this information, being attributed a different identity under which to appear in front of the judicial body.

This measure may be disposed by the prosecutor during criminal prosecution and by the court during trial, upon motivated request from the prosecutor, witness or any other entitled person.

The information about the real identity of the witness is mentioned in an official report that will be kept at the prosecutor’s office which performed or supervised the performing of the criminal investigation or, according to the case, at the court, in a special place, in a sealed envelope, in conditions of maxim security. The official report will be signed by the person who handed the request, as well as by the one who disposed the measure.

The documents concerning the real identity of the witness shall be presented to the prosecutor or, according to the case, to the panel of judges, in conditions of strict confidentiality.

In all cases, the documents regarding the real identity of the witness will be introduced in the criminal file only after the prosecutor, by ordinance, or, according to the case, the court, by closing, established that the danger which determined taking measures for witness protection has disappeared.

The statements of witnesses who were attributed another identity, reproduced in the prosecutor’s report, according to art. 862 par. 5, as well as the witness’ statement, recorded during trial and signed by the prosecutor present at the witness’ hearing and by the president of the panel, according to art. 862 par. 6, thesis I, may serve to finding out the truth only to the extent to which they are corroborated with facts and circumstances resulted from all the evidence in the case.

Other persons who may be heard as witnesses that were attributed another identity are undercover investigators.

Dispositions provided by par. 1-6 are also applied to experts.

TITLE III
EVIDENCE AND MEANS OF EVIDENCE

CHAPTER III
MEANS OF EVIDENCE

Section III
Statements of the witnesses

Art. 86(2) – In the situations provided by art. 86(1), if there are appropriate technical means, the prosecutor or, according to the case, the court may allow the witness to be heard without actually being present at the place where the criminal investigation body is or in the room where the judgment takes place, through technical means provided in the following paragraphs.

Recording the witness’ statement, in the conditions described at par. 1, will be performed in the presence of the prosecutor.

The witness may be heard through a television network, with the image and voice distorted so as not to be recognised.

The statement of the witness heard, in the conditions stated at par. 1 and 2, are recorded through technical video and audio means and are rendered entirely in written form.

During the criminal investigation, a report is made in which the witness’ statement is accurately rendered and which is signed by the prosecutor present at the witness’ hearing and by the criminal investigation body and kept with the case file. The witness’ statement, transcribed, shall be signed also by the latter and kept in the file set down at the court, in the conditions provided under par. 5.

Video and audio tapes, on which the witness’ statement was recorded, as an original, sealed with the prosecutor’s office seal or, according to the case, to that of the court in front of which the statement was made, are kept in the conditions provided at art. 5. The video and audio tapes recorded during the criminal investigation shall be handed, at the ending of the criminal investigation, to the competent court, together with the case file, and shall be kept in the same conditions.

The provisions of art. 78, 85 and of art. 86 par. 1 and 2 shall be applied accordingly.

Article 68
Protection of the victims and witnesses and their participation in the proceedings
1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.
3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6.
5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.