CCPE-BU(2017)1

Strasbourg, 14 February 2017

                               

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

In your answers, please do not send extracts of your legislation but describe the situation in brief and concise manner, including briefly what is happening in practice.

Introduction

The Opinion deals, in general, with the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, and, in particular, with the role of prosecutors in protecting these rights.

The first section deals with the definition of victims, witnesses and vulnerable persons in the way in which it exists in different member states of the Council of Europe. The second section deals with their rights. The third section concerns the role of prosecutors in protecting these rights. This section, due to the mandate of the CCPE, is the key section of the Opinion.

The Bureau and the Secretariat of the CCPE would like to strongly thank you for your cooperation and contributions.

1. Definitions

1.1      Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?

Yes, there is a definition of a victim, established in the law: Article 74 Criminal Procedure Code (СPС):

(1) The person who has suffered material or immaterial damages from the criminal offence shall be a victim.

(2) After the death of such persons, this right shall pass on to their heirs.

(3) The accused party shall not exercise the rights of a victim within one and the same proceedings.

Тhere is no a positive definition of a witness, but the Criminal Procedure Code (CPC) defines the witness testimony (as oral objective forms of evidence) in art. 117 and enumerates the Individuals who may not have the capacity of witnesses in art. 118.

1.2      Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them?

There are special measures for victims of trafficking in human beings and domestic violence, regulated by special laws, outside the CPC (Combating Trafficking in Human Beings Act and Protection Against Domestic Violence Act). The special protection and treatment of witnesses in the CPC, incl. restrictive measures towards the accused person, follow the assessment of the threat and objective vulnerability (age, disability, dependence), not a certain types of crime.

1.3      Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments?

There is no definition of vulnerable persons in the CPC. The perception of vulnerability is rather introduced in the practice on the basis of typical criteria – age, dependence from the perpetrator, victimization by sexual offence, trafficking of human beings, organized crime etc.

2. The rights of victims, witnesses and vulnerable persons

2.1      Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?

Yes.

2.2      If yes, are they established in the law or other legal instruments?

The rights of the victim and the witness are established in the law.

2.3      Please enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights).

Article 75 CPC (victim)

-       to be informed of his/her rights within the criminal proceedings;

-       to obtain protection with regard to his/her personal safety and the safety of its relatives;

-       to be informed of the progress of the criminal proceedings;

-       to take part in the proceedings in accordance with the provisions of this Code;

-       to furnish requests, note and objections;

-       to file appeals with regard to the acts resulting in the termination or suspension of criminal proceedings;

-       to have a counsel.

The authority which initiates the pre-trial proceedings shall immediately notify the victim thereof, if the latter has specified an address for service in Bulgaria.

The victim's rights arise if he/she has expressly requested to be involved in the pre-trial proceedings and specified an address for service in Bulgaria.

Article 119, 121, 122, 123, 140 CPC (witness)

-       to use notes about figures, dates etc., available with them and which refer to their testimony;

-       to receive remuneration for the lost workday and to be reimbursed for any expenses incurred, as well as to request revocation of acts that infringe upon their rights and lawful interests.

-       to consult a lawyer, where he/she believes that by answering the question his/her fundamental rights are infringed upon (where a request to this effect has been made, the investigative body or the court shall allow for this possibility).

-       to obtain protection (The prosecutor, the judge-rapporteur or the court shall, upon request or with consent of the witness, take measures for his/her immediate protection, should there be sufficient grounds to assume that, as a result of testimony, a real threat has arisen or may arise to the life, health or property of the witness, his/her ascending and descending relatives, brothers, sisters, spouse or individuals with whom he is in a particularly close relationship)

-       children shall be interrogated as witnesses in the presence of a pedagogue or psychologist, and where necessary, also in the presence of their parent or guardian.

-       witnesses shall not be obligated to testify on questions, the answers to which might incriminate them, their relatives of ascending and descending line, brothers, sisters, spouses or individuals with whom they live together, in the commission of crime]

-       the spouse, ascendants, descendants, brothers, sisters of the accused party and the individuals with whom he/she lives together may refuse to testify

2.4      How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?

The investigator, the prosecutor and the court are obliged to inform the victim/witness about her/his rights and to explain them. This is their duty (formal arrangement). In the court-phase the information is provided orally and put in the trial record. In the pre-trial investigation the information about the rights of the victim/witness is included in the protocol, signed by him/her.

2.5      What kind of penalties and sanctions are established for violation of these rights?

The violation of the rights of the victim gives ground for the court to terminate the court proceeding and to return the case file to the prosecutor. The judge's order shall state the violations made. In such cases the prosecutor shall eliminate the specified procedural violations. This is considered as a specific “procedural sanction” for a low quality work in the pre-trial phase.

Concrete evidence, which is collected not in compliance with the rules, may be deemed inadmissible. Disciplinary sanctions are also admissible for the prosecutor/investigator.

2.6      Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?

Yes. See above 1.2.

2.7      When a decision in criminal matters is likely to affect the rights or the situation of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?

Yes.

2.8      Can such vulnerable persons bear testimony alone or only following authorisation by their legal representatives, and in this latter case, in what conditions?

Yes, the person testifies without the authorisation by his/her legal representatives. The parent/legal representative takes part in the interrogation only when this is necessary.

2.9      Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?

Yes, see above 2.3. Individuals, who on account of physical or mental deficiencies are unable to properly perceive the facts of significance in the case, or give reliable testimonies about them, may not have the capacity of witnesses.

2.10    Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?

The body (court or prosecutor) which conducts the case in the respective phase does the evaluation – when necessary with the help of experts. The person can play a certain role in this process by obtaining special measures of witness protection. The possible temporary measures under the CPC are a) personal physical protection and b)keeping his/her identity secret. Within up to thirty days of taking a temporarymeasure, the prosecutor or judge-rapporteur may propose the inclusion of the witness or his/her ascending or descending relatives, siblings, spouse or of the persons with whom he/she is in particularly close relationships into the protection programme.

2.11    Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?

Yes. Every testimony can be filmed and recorded, based on a deceision of the pre-trial body (Art. 238-238 CPC). This does not mean that in the trial phase the testimony will be not given or will be given without the presence in the court-room/behind the screen. The latter is possible in cases of:  witness protection; interrogation before judge in the pre-trial phase or upon consent of the parties; phone and videoconference; interrogation of a child.

2.12    How is the prevention of repeated victimisation ensured?

There are several instruments:

-       The possibility to read the depositions of the witnesses, given in the pre-trial phase before a judge.

-       The possibility to read the depositions of the witnesses, given in the pre-trial phase upon the consent of the parties;

-       The possibility to use videoconference.

-       Witness protection.

2.13    Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?

Nationals and foreigners enjoy equal treatment.

3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons

3.1      How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?

See above 1.2 and 2.3. As “dominus Iitis” in the pre-trial phase the prosecutor plays a crucial role in guarantying the rights of victims, witnesses and vulnerable persons.

3.2      Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?

The role is established in the law – CPC and other acts, concerning victim – support and witness protection.

3.3      How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?

The prosecutor directs the police in carrying the investigation and cooperates with other state bodies with competencies in this field (e.g. State agency for child protection, National commission for combating the trafficking in human beings) and NGOs. The prosecutor has supervisory or monitoring functions towards the police.

3.4      Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?

Yes, they can.

3.5      Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?

Yes, under conditions.

In cases of criminal offences prosecuted following complaint of the victim (Art. 48-50 CPC )

-       Where the victim, due to helpless state or dependency upon the perpetrator of the crime, cannot defend his or her rights and lawful interests, the prosecutor may join the proceedings initiated after a complaint by the victim, at any stage of the case, and may take up the accusation.

-       In exceptional cases of crimes prosecuted on the grounds of complaint by the victim, where the latter cannot defend his or her rights and legal interests due to a state of helplessness or dependency upon the perpetrator of the crime, the prosecutor may institute criminal proceedings ex officio.

In terms of bringing civil action (Art. 51 CPC)

Where the victim, on account of being underage or of a physical or mental deficiency, is unable to defend his/her rights and legal interests, the prosecutor may bring a civil action to his/her benefit.

3.6      Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?

Yes, see above 3.3.

3.7      Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?

Yes. The prosecutors take part in training courses, organized by the National Institute of Justice and in the Internal training program of the Prosecutor`s office. The latter was focused on participation of children in criminal proceedings in the last 2 years. The prosecutors provide trainings for the police on regular basis.

3.8      Any other relevant point you wish to raise.

No.