2010-07-01
& 1. Protection of threatened witnesses
ART. 125
Threatened witness
If there is a reasonable suspicion that the life, physical integrity, freedom, assets or professional activity of a witness or of a member of their family could be jeopardized as a result of the data provided by them to judicial bodies or of their statements, the judicial bodies of competent jurisdiction shall grant them the status of threatened witness and shall order one or more of the protection measures set by Arts. 126 or 127, as applicable.
ART. 126
Protection measures ordered during the criminal investigation
(1) During the criminal investigation, once that the status of threatened witness was granted, the prosecutor shall order the application of one or more of the following measures:
a) surveillance and guard of the witness’ residence or providing of a temporary dwelling space;
b) accompanying and ensuring protection to the witness or to their family members during travels;
c) protection of identity data, by issuing them a pseudonym under which the witness shall sign their statement;
d) hearing of a witness without them being physically present, through audio-video transmission devices, with their voice and image distorted, when the other measures are not sufficient.
(2) The prosecutor orders the application of protection measures ex officio or upon request by the witness, one of the parties or a main trial subject.
(3) In case of application of the protection measures listed under par. (1) items c) and d), witness statements shall not include their real address or their identity data, these being recorded in a special register to which only criminal investigation bodies, the Judge for Rights and Liberties, the Preliminary Chamber Judge or the court have access, under confidentiality terms.
(4) The prosecutor orders the granting of the status of threatened witness and the application of protection measures through a reasoned order, which is stored under confidentiality terms.
(5) The prosecutor checks, at reasonable time intervals, whether the conditions having imposed the taking of protection measures continue to exist, and if not, they shall order, through a reasoned order, their termination.
(6) The measures set by par. (1) shall be maintained throughout the criminal proceedings if the state of danger did not cease.
(7) If a state of danger occurred during preliminary chamber procedure, the Preliminary Chamber Judge, ex officio or upon notification by the prosecutor, shall order protection measures set by Art. 127. The provisions of Art. 128 shall apply accordingly.
(8) The protection measures set under par. (1) item a) and b) shall be communicated to the authority appointed to enforce such measures.
ART. 127
Protection measures ordered during the trial
During the trial, once that the status of threatened witness was granted, the court shall order the application of one or more of the following measures:
a) surveillance and guard of the witness’ residence or providing of a temporary dwelling space;
b) accompanying and ensuring protection to the witness or to their family members during trips;
c) closed court sessions during the hearing of witnesses;
d) hearing of witnesses without them being physically present in the court room, through audio-video transmission devices, with their voice and image distorted, when the other measures are not sufficient;
e) protection of identity data, by issuing a pseudonym under which the witness shall testify.
ART. 128
Ordering a witness protection measure during the trial
(1) The court orders the application of protection measures ex officio, upon request by the prosecutor, the witnesses, the parties or the victim.
(2) A proposal filed by the prosecutor includes:
a) name of the witnesses to be heard at the trial stage and in whose respect the ordering of a protection measure is sought;
b) an actual reasoning of the danger seriousness and of such measure need.
(3) When such application is filed by other persons listed under par. (1), the court may order that the prosecutor conduct verifications, on an emergency basis, in respect of the soundness of such protection request.
(4) Such application shall be ruled on in chambers, without the participation of the person who filed it.
(5) The prosecutor’s attendance is mandatory.
(6) The court shall decide through a reasoned court resolution, which is not subject to avenues of appeal.
(7) The court resolution ordering a protection measure shall be stored under confidentiality terms. If witness protection is necessary also after the court sentence remains final, provisions of the special law are applicable.
(8) The protection measures set under Art. 127 items a) and b) shall be communicated to the authority appointed to enforce such measures.
ART. 129
Hearing protected witnesses
(1) In the situations listed under Art. 126 par. (1) item d) and Art. 127 item d), the hearing of witnesses may be conducted through audio-video devices, without the physical presence of the witness at the venue where judicial bodies are.
(2) *** Repealed
(3) Main trial subjects, parties and their counsels may cross examine witnesses who testify under the terms set by par. (1). Judicial bodies shall deny questions that may lead to a witness' identification.
(4) Statements of protected witnesses shall be recorded using audio and video technical devices and shall be fully transcribed in a written format.
(5) During the criminal investigation, statements are signed by criminal investigation bodies or, as applicable, by the Judge for Rights and Liberties and by the prosecutor who attended the hearing of witnesses, and shall be included in the case file. Transcribed witness statements shall also be signed by these and shall be stored with the case file submitted to the prosecutors’ office, in a special place, under confidentiality terms.
(6) During the trial, witness statements are signed by the judicial panel’s presiding judge.
(7) The medium on which witness statements were recorded, in original, sealed with the seal of the prosecutors’ office or, as applicable, of the court before which the statement was given, shall be stored under confidentiality terms. The medium containing the recordings made during the criminal investigation shall be submitted at the end of the criminal investigation to the court of competent jurisdiction, together with the case file, and shall be stored under the same confidentiality terms.
& 2. Protection of vulnerable witnesses
ART. 130
Vulnerable witnesses
(1) The prosecutor or, as applicable, the court may decide to grant the status of vulnerable witness to the following categories of persons:
a) witnesses who suffered a trauma as a result of the committed offense or of the subsequent behavior of a suspect or defendant;
b) underage witnesses.
(2) At the moment of granting the status of vulnerable witness, the prosecutor and the court may order protection measures set by Art. 126 par. (1) items b) and d) or, as applicable, by Art. 127 items b) - e), which apply accordingly. Distortion of the voice and image is not mandatory.
(3) Provisions of Arts. 126 and 128 shall apply accordingly.
