Part I
GENERAL PROVISIONS
Chapter VII
EVIDENTIARY ACTIONS
4. Examination of witnesses
General rule of witness protection
Article 116
(1) The authority in charge of the proceedings shall have the obligation to protect the witness and the injured party from insults, threats and any other attacks.
(2) A participant in the proceeding or any other person who insults or threatens the witness or injured party or brings his safety into jeopardy in front of the authority in charge of the proceedings, shall be warned or fined by the authority in charge of the proceedings. In case of violence or serious threat, the court shall notify the Public Prosecutor for the purpose of prosecution and in the case the violence or serious threat occurred in the preliminary investigation or investigation before the Public Prosecutor, he himself shall initiate prosecution or inform the Public Prosecutor having jurisdiction about it. Provisions of Article 115 of the present Code shall accordingly be applied regarding any fine(s).
(3) The Public Prosecutor, Investigative Judge, President of the Trial Chamber or the President of the Court may request from police to take special measures for the protection of the witness and injured party.
Examination of a protected witness
Article 117
(1) If there are circumstances that clearly indicate that the life, health, physical integrity, freedom or any considerable assets of a witness in a criminal proceeding punishable by imprisonment of ten years or any stricter penalty, or persons close to him, would be seriously threatened due to his testimony and answers to some questions, the court may decide to grant this person the status of a protected witness and order a special method of examination of this witness in the criminal proceedings in order to prevent his identity from being disclosed during the proceedings.
(2) The decision referred to in paragraph 1 of the present Article may exceptionally be made in the case of criminal proceedings for a criminal offense punishable by imprisonment of four years or any stricter penalty, if special circumstances indicate that the witness or persons close to him may be exposed to the threat referred to in paragraph 1 of the present Article, and an alternative method of protection of a witness would be either impossible or considerably more difficult.
(3) The special way of examination of a protected witness includes one or several special protective measures:
1) closed trial;
2) alteration, removal from the record or ban on the disclosure of any data referring to the witness’s identity;
3) withholding of any data referring to the witness’s identity;
4) examination of the witness under a pseudonym;
5) concealment of the face of the witness;
6) testifying from a separate room through voice-distortion devices;
7) examination of the witness in a room outside the courtroom, in another place in the country or abroad, communicated to the courtroom by means of the picture and sound transmission devices, with the possibility of using voice- and image-distortion devices.
(4) When special protection measures include the use of technical devices, a skilled professional person shall handle these devices under the supervision of the authority in charge of criminal proceedings.
(5) Examination in the way referred to in paragraph 3, item 7 of the present Article may be also carried out when the presence of the witness or injured party at the trial cannot be ensured, and such an examination may be carried out also through international legal assistance in criminal matters.
Ruling on granting a person the status of a protected witness
Article 118
(1) The court may rule to grant the status of a protected witness at the request of a person who either should be examined as a witness or has already been examined as a witness in the previous stages of the proceedings, or ex officio, i.e. at the request of a party and with the consent of the person who should be granted such a status. The request must be in writing and substantiated and, exceptionally, upon the commencement of the trial, a witness may make such a request verbally, at the time
the court decides on the exclusion of public on which a special record shall be made.
(2) The request referred to in paragraph 1 of the present Article shall be filed in a sealed envelope bearing the marking: “witness protection – official secret – confidential.” The request shall contain: personal data on the person who should be examined as a witness, or on the witness; description and statutory title of the criminal offense which constitutes the subject matter of the proceedings in connection with which the person should be examined; circumstances to which the testimony would most likely refer; circumstances that result in the serious threat referred to in Article 117, paragraph 1 of the present Code, or due to which the condition referred to in Article 117, paragraph 2 of the present Code has been met.
(3) The court shall make the decision referred to in paragraph 1 of the present Article after assessing the probable importance of witness’s testimony for the proceedings and seriousness of the threat referred to in Article 117, paragraph 1 of the present Code, or fulfillment of conditions referred to in Article 117, paragraph 2 of the present Code, and for this purpose the court shall schedule a separate hearing which shall be attended by the witness to whom the request refers and the parties. Immediately upon the conclusion of this hearing, the court shall decide on the status of protected witness and inform the persons who have attended the hearing verbally about the contents of its decision. Once the court renders a ruling granting the protected witness status, it shall explicitly warn the present persons of their obligation to keep the information on the identity of the witness a secret and of the consequences of violation of this obligation.
(4) In its ruling on awarding the status of protected witness, the court shall specify one or several special protection measures referred to in Article 117, paragraph 3 of the present Code and the way for protecting the information on the identity of the witness in the documents.
(5) The Court shall serve its ruling denying the request referred to in paragraph 1 of the present Article on the person who has filed the request and shall not communicate it verbally.
Keeping a protected witness’s identity secret during the criminal proceedings
Article 119
(1) Before the examination begins, the protected witness shall be informed that the data referring to his identity shall not be disclosed to anyone, except to the court and the parties, i.e. the authority in charge of the proceedings, and he shall be informed about the special protection measures which shall be applied during his examination.
(2) The authority in charge of the proceedings shall warn all present persons of their obligation to keep secret all information they directly or indirectly learn about the protected witness and persons close to him and of the fact that to divulge this secret constitutes a criminal offense. This warning shall be entered in the record together with the names and surnames of all present persons.
(3) The authority in charge of the proceedings shall forbid any question the answer to which might directly or indirectly disclose the identity of the protected witness.
(4) The protected witness shall sign the record using his pseudonym.
(5) Exceptionally, in especially justified cases, if the authority in charge of the proceedings assesses that the life, health or freedom of the witness have been seriously threatened and that the witness is convincing, the defendant and his lawyer may be denied temporarily and at the latest until the scheduling of the trial all or some information about the identity of the protected witness.
(6) The defendant and his lawyer must be given the opportunity in the proceedings to contest the justifiability of the measure referred to in Article 117, paragraph 3 of the present Code.
Keeping the identity of a protected witness secret in the documents
Article 120
(1) Data on the identity of a protected witness and persons close to him as well as of some other facts that may directly or indirectly lead to the disclosure of their identities shall be placed in a special envelope bearing the marking “witness protection – official secret – confidential,” sealed by the official seal of the court and given to the Investigative Judge for safekeeping.
(2) The sealed envelope may be opened only by the second instance court when deciding on an appeal against the decision of the first instance court that ended the criminal proceeding. The date and hour of the opening and names of the members of the trial chamber of the second instance court who are familiar with its content shall be written on the envelope. After that, the envelope shall be resealed and returned to the Investigative Judge of the first instance court.
(3) Service on a protected witness shall be made in such a way as to ensure that his identity remains a secret.
(4) Data on the protected witness and persons close to him represent an official secret which must be kept by all persons who learn it in any way and in any capacity.
Protection of data on a protected witness in criminal proceedings instituted as a
result of his testimony
Article 121
In criminal proceedings instituted as a result of the testimony of a protected witness, the secrecy of information on the protected witness shall be ensured.
Appropriate implementation of some provisions on the protected witness
Article 122
Provisions of Articles 117 to 121 shall apply, as appropriate, to a suspect, defendant and injured party who also appears as a witness in criminal proceedings.
Witness protection - national proceedings
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