Equipo Nizkor - Law on Protection of Witnesses under Threat and Vulnerable Witnesses.

UNOFFICIAL, CONSOLIDATED VERSION

("Official Gazette" of Bosnia and Herzegovina, 3/03, 21/03, 61/04, 55/05 |1|)

CHAPTER I
GENERAL PROVISIONS

Article 1
Purpose

This Law regulates the measures to provide for the protection of witnesses under threat and vulnerable witnesses in criminal proceedings conducted by the Court of Bosnia and Herzegovina (hereinafter: the Court) or the Prosecutor's Office of Bosnia and Herzegovina (hereinafter: the Prosecutor) in criminal offences over which the Court has jurisdiction.

Article 2
Meaning of Terms

(1) Family for the purpose of this Law refers to persons who are allowed to refuse to testify pursuant to article 83 of the Criminal Procedure Code of Bosnia and Herzegovina (hereinafter: CPC Biff).

(2) Other terms used in this Law shall have the meaning that follows from the CPC BiH, the Criminal Code of Bosnia and Herzegovina and the Law on the Court of Bosnia and Herzegovina, unless otherwise stipulated by this Law.

Article 3
Witnesses under threat and vulnerable witnesses

(1) A witness under threat is a witness whose personal security or the security of his family is endangered through his participation in the proceedings, as a result of threats, intimidation or similar actions pertaining to his testimony or a witness who has reasonable grounds to fear that such a danger is likely to result from his testimony..

(2) (deleted).

(2) A vulnerable witness is a witness who has been severely physically or mentally traumatized by the events of the offence or otherwise suffers from a serious mental condition rendering him unusually sensitive, and a child and a juvenile.

(3) A protected witness is a witness heard according to the provisions of Articles 14 through 23 of this Law.

Article 4
Application of witness protection measures

The Court may order such witness protection measures provided for by this Law as it considers necessary, including the application of more than one measure at the same time. When deciding which of the witness protection measures is to be applied the Court shall not order the application of a more severe measure if the same effect can be achieved by application of a less severe measure.

Article 5
Informing witnesses

(1) The Court, the Prosecutor and other bodies participating in the proceedings shall, ex officio, advise a witness who may be under threat or a vulnerable witness of the witness protection measures available under this Law.

(2) A witness under threat and a vulnerable witness shall be entitled to legal aid and shall have the right to assistance and support of social care bodies in accordance with the law.

CHAPTER II
WITNESS PROTECTION MEASURES

Article 5a)

Measures of protection shall only be implemented with the consent of the witness.

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.

Article 14
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.

Article 15
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.

Article 16
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:

(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.

Article 17
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.

Article 18
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.

Article 19
Hearing

(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

the members of the Court and the minute taker of the Court

if designated as a protected witness

Court

he can not be compelled to answer questions

(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.

Article 20
Record

(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:

Article 21
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.

Article 22
Additional Questions

(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:

(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.

Article 23
Verdict Requires Other Evidence

The Court shall not base a conviction either solely or to a decisive extent on evidence provided according to Articles 11, or 14 through 22 of this Law.

CHAPTER III
OTHER PROVISIONS

Article 24
Confidentiality

(1) Information that a person who performs official duties in connection with witness protection measures acquires in the course of those duties relating to witness protection measures, constitutes an official secret.

(2) The Court or the Prosecutor shall warn persons who are present at hearings, or who are otherwise given possession of such secret information in the exercise of their official or professional duties, that the unauthorised disclosure of such information is a criminal offence.

(3) A person who performs official duties in connection with witness protection measures and who acquires information referred to in paragraph 1 of this Article cannot be required in any proceeding in any court, tribunal, or commission of inquiry, however described, to produce any document or divulge or communicate any matter relating to that information.

Article 24 a)

General provisions concerning the disclosure of information prescribed by the BiH Freedom of Information Act shall not apply to the processing of personal data of witnesses as described under this Law.

Article 25
Rules of Procedure

The Court shall adopt rules of procedure ensuring the appropriate use of the means to protect witnesses stipulated in this Law, and guaranteeing that witnesses are afforded other appropriate protection or care as provided for by the laws of Bosnia and Herzegovina as appropriate.

CHAPTER IV
TRANSITIONAL AND FINAL PROVISIONS

Article 26
Applicability to ongoing criminal proceedings

This Law applies as appropriate also in criminal proceedings that are ongoing at the time this Law comes into force.

Article 27
Entry into force of the Law

This Law shall enter into force on March 1, 2003.

[Source: Official Gazette of Bosnia and Herzegovina, No. 3/03, 21/03, 61/04, 55/05. Unofficial, consolidated version provided by the Court of Bosnia and Herzegovina]

Notes:

1. High Representative imposed Law on Protection of Witnesses under Threat and Vulnerable Witnesses. This law has been adopted by BH Parliamentary Assembly and published in the Official Gazette of Bosnia and Herzegovina 21/03; Amendments to the Law on Protection of Witnesses under Threat and Vulnerable Witnesses, published in the Official Gazette of Bosnia and Herzegovina 61/04 - bold, underline; Correction of the Law on Protection of Witnesses under Threat and Vulnerable Witnesses, published in the Official Gazette of Bosnia and Herzegovina 55/05 - italic [Back]

Legislation
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01Mar03 - BIH

Law on Protection of Witnesses under Threat and Vulnerable Witnesses

[Source: Official Gazette of Bosnia and Herzegovina, No. 3/03, 21/03, 61/04, 55/05. Unofficial, consolidated version provided by the Court of Bosnia and Herzegovina]

Notes: