CHAPTER II
WITNESS PROTECTION MEASURES
Article 6
Access to psychological and social assistance and professional help
During the investigation, the Prosecutor, and after the indictment has been issued, the Court, shall provided the witness agrees, and without disclosing any of the witness’s personal details, ensure that the body responsible for issues of social care is aware of the involvement of the vulnerable witness in the proceedings and shall enable the assistance of this body as well as psychological support to the witness, including the presence of appropriate professionals at examination or hearings.
Article 7
Order of presentation of evidence at the main trial
In the course of the main trial, the Court may hear witnesses under threat and vulnerable witnesses at the earliest possible time and shall have the possibility of hearing those witnesses at the main trial in a different order from the one stipulated by the CPC BiH.
Article 8
Examination
(1) The judge or the presiding judge shall exercise an appropriate control over the manner of the examination of witnesses when a vulnerable witness is examined, particularly to protect the witness from harassment and confusion.
(2) In exceptional circumstances, if the Court finds it to be in the witness’s best interest, the Court may, with the consent of the parties and the defense attorney, hear a vulnerable witness by posing questions directly to the witness on behalf of the parties and the defense attorney.
Article 9
Testimony by using technical means for transferring image and sound
When determining whether there are justified reasons for examining a witness using technical means for transferring image and sound in such manner as to permit the parties and the defense attorney to ask questions although not in the same room as the witness, the need to provide for the protection of witnesses under threat and vulnerable witnesses shall also be taken into account.
Article 10
Removal of the accused
(1) Where there is a justified fear that the presence of the accused will affect the ability of the witness to testify fully and correctly, the Court may, either ex officio or upon the motion of the parties or the defense attorney, and after hearing the other party and the defense attorney, order that the accused be removed from the courtroom.
(2) If removed from the courtroom the accused shall be enabled to follow the testimony through technical means for transferring image and sound, or the testimony shall be recorded and presented to the accused.
(3) The defense attorney shall be present at the hearing. After the testimony has been presented to the accused but before the witness is released, the defense attorney and the accused shall have the opportunity to consult.
(4) A decision pursuant to paragraph 1 of this Article is subject to appeal by the parties and the defense attorney. The Panel of the Appellate Division shall consider the appeal within 72 hours following the day the appeal is received.
Article 11
Exception from the imminent presentation of evidence
When determining whether the records on testimony given during the investigative phase may be read or used as evidence at the main trial, the Court shall also take into account the need to provide for the protection of a witness under threat who would expose himself or his family to great personal danger and the protection of a vulnerable witness who would expose himself to significant emotional distress by appearing at the main trial.
Article 12
Limitation of the right of an accused and his defense attorney to inspect files and documentation
(1) In exceptional circumstances, if revealing some or all of the personal details of a witness or other details would contribute to identifying a witness, and would seriously endanger the witness under threat, the preliminary proceedings judge may, upon the motion of the Prosecutor, decide that some or all of the personal details of a witness, may continue to be kept confidential after the indictment is issued.
(2) The prosecutor shall immediately notify the accused and his defense attorney of the submission of the motion referred to in paragraph 1 of this Article.
(3) If possible, the preliminary proceedings judge shall hear the accused and his defense attorney prior to issuing the decision referred to in paragraph 1 of this Article. The decision of the preliminary proceedings judge must be issued within 72 hours following the day the motion is received.
(4) No appeal shall be permissible against the decision referred to in paragraph 1 of this Article.
(5) If the preliminary proceedings judge was unable to hear the accused and his defense attorney prior to the decision referred to in paragraph 1 of this Article, the Court shall hear them immediately upon receiving the indictment.
(6) The Court may revoke the decision referred to in paragraph 1 of this Article, either ex officio or upon the motion of the accused or his defense attorney.
(7) Upon the motion of the Prosecutor, the Court shall revoke the decision referred to in paragraph 1 of this Article.
(8) The Court shall at all stages in the proceedings be mindful of the need to release, as soon as possible, the information to which the decision referred to in paragraph 1 of this Article pertains. Sufficient details shall be released for the defense to prepare for examination of a witness. The information must be released at the latest when the witness testifies at the main trial.
Article 13
Additional measures to provide for the non-disclosure of the identity of the witness
(1) In exceptional circumstances, where there is a justified fear that if some or all of the personal details of the witness are released it would seriously endanger the personal security of a witness or his family, and the danger would persist after the testimony is given, the Court may, either ex officio or upon the motion of the parties or the defense attorney, decide that the personal details of the witness shall remain confidential 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.
(2) The Court may, after hearing the parties and the defense attorney, decide that the identity of the witness is not disclosed by allowing the witness to testify behind a screen or utilizing electronic distortion of the voice of the witness or the image of the witness, or both the image and the voice, by using technical means for transferring image and sound.
(3) The Court may, at any time, revoke the decision from paragraph 1 of this Article, either ex officio or upon the motion of the parties or the defense attorney.
Non-disclosure of former identity – witness protection
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