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, a victim is a natural or legal person whose legal rights have been directly violated by a criminal offence aimed at the person or by an unlawful act committed by a person not capable of guilt. In the case of an attempt to commit a criminal offence, a person is a victim even if, instead of the legal rights attacked, such legal rights are violated the violation of which is covered by the legal rights attacked.

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?    

Yes. Estonia’s Victim Support Act provides the bases for state organisation of victim support, organisation of conciliation and women's support centre service, organisation of victim support service to victim of trafficking in human beings and sexually abused minor, compensation for the cost of the psychological care paid within the framework of provision of victim support service and the organisation of payment of state compensation to victims of crimes of violence.

In addition, the body conducting proceedings is obligated to assess whether any circumstances exist which give reason to believe that the victim requires special treatment and protection in criminal proceedings.

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?

Yes, indirectly. Estonia’s Penal Code establishes that the commission of an offence knowingly against a person who is less than eighteen years of age, pregnant, in an advanced age, in need of assistance, has a severe mental disorder, who is in a service or financially dependent relationship with the offender, and against a former or current family member of the offender, against a person who lives with the offender or a person who is otherwise in a family relationship with the offender is considered an aggravating circumstance. The Code’s article 121 paragraph 2 stipulates that while causing damage to the health of another person and physical abuse which causes pain is punishable by up to one year's imprisonment, the same act if committed in a close relationship or relationship of subordination is punishable by up to five years’ imprisonment.

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?

Yes.

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).

Yes, a victim has the right to:

1) contest a refusal to commence or termination of criminal proceedings pursuant to the procedure provided for in the Code of Criminal Proceedings.

2) file a civil action or proof of claim in public law through an investigative body or the prosecutor's office during the term provided for in the Code.

3) give or refuse to give testimony on the bases provided for in the Code

4) submit evidence;

5) submit requests and complaints;

6) examine the minutes of procedural acts and give statements on the conditions, course, results and minutes of the procedural acts, whereas such statements are recorded in the minutes;

7) examine the materials of the criminal file pursuant to the procedure provided for in the Code.

8) participate in the court hearing;

9) give consent to the application of settlement proceedings or to refuse to give such consent, to present an opinion concerning the charges and punishment and the amount of damage set out in the charges and the civil action or the proof of claim in public law;

10) give consent to the application of temporary restraining order and request application of restraining order pursuant to the procedure provided for in the Code.

11) request that his or her hearing is conducted by a person of the same sex when it comes to sexual violence, gender violence or a criminal offence committed in close relationship, except if the hearing is conducted by a prosecutor or a judge or if this would hinder the course of the proceeding.

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.?

Victims and witnesses are informed of their rights immediately when they are involved in the proceedings as a victim by subjection to procedural acts or by a ruling of the body conducting proceedings. The victim, when involved in criminal proceedings for the first time, signs a document which explicitly outlines the victim’s rights and obligations.

If a body conducting proceedings has not received appropriate training, involvement of a child protection official, social worker, teacher or psychologist in the hearing of a minor is mandatory if:

1) the witness is up to ten years of age and repeated hearing may have a harmful effect on the mind of a minor;

2) the witness is up to fourteen years of age and the hearing is related to domestic violence or sexual abuse;

3) the witness is with speech impairments, sensory or learning disabilities or mental disorders.

If necessary, the hearing of minors is video recorded. The hearing of minors is video recorded if the intention is to use such hearing as evidence in court proceeding because hearing of a minor directly in a court is impossible due to his or her age or mental state.

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

A person whose rights are violated by the unlawful activities of a public authority in a public law relationship (hereinafter injured party) may claim compensation for damage caused to the person if damage could not be prevented and cannot be eliminated by the protection or restoration of rights.

Knowingly preventing a witness from appearing at pre-trial proceedings or court proceedings as well as knowingly influencing the specified persons for the same purpose is punishable by a pecuniary punishment or up to one year's imprisonment.

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. The body conducting proceedings is obligated to assess whether any circumstances exist which give reason to believe that the victim requires special treatment and protection in criminal proceedings. The assessment takes into consideration the victim's personal characteristics, the gravity and nature of the criminal offence, the personality of the suspect, the circumstances relating to the commission of the criminal offence and the damage caused to the victim. A victim who is a minor is presumed to need special treatment and protection in criminal proceedings.

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)?

No, a civil court is not automatically informed of the particular decision reached by the criminal court.

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, they can.

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

The following persons have the right to refuse to give testimony as witnesses:

1) the descendants and ascendants of the suspect or accused;

2) a sister, stepsister, brother or stepbrother of the suspect or accused, or a person who is or has been married to a sister, stepsister, brother or stepbrother of the suspect or accused;

3) a step or foster parent or a step or foster child of the suspect or accused;

4) an adoptive parent or an adopted child of the suspect or accused;

5) the spouse of or a person permanently living together with the suspect or accused, and the parents of the spouse or person, even if the marriage or permanent cohabitation has ended.

 

A witness may also refuse to give testimony if the testimony may lay blame on him or her or a person listed in the previous paragraph for the commission of a criminal offence or a misdemeanour or if he or she has been acquitted or convicted in the same criminal offence as a joint principal offender or an accomplice.

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?

As outlined above, this evaluation is conducted by the body conducting proceedings. The assessment takes into consideration the victim's personal characteristics, the gravity and nature of the criminal offence, the personality of the suspect, the circumstances relating to the commission of the criminal offence and the damage caused to the victim. A victim who is a minor is presumed to need special treatment and protection in criminal proceedings.

Among the applied protective measures are conducting the hearing in the premises adapted for the special needs of the victim, by a specialist trained for hearing victims with special protection needs or with his or her participation or, if possible, by the same person during the whole proceedings.

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?

At the request of a party or on its own initiative, the court may allow a telehearing to be conducted or use a partition to hide the witness form the accused. A body conducting the proceedings may organise telehearing of a witness if the direct hearing of the witness is complicated or involves excessive costs or if it is necessary to protect the witness or the victim. Telehearing by telephone is permitted only with the consent of the person to be heard and the suspect or accused. The consent of the suspect or accused is unnecessary for the telehearing of anonymous witnesses by telephone.

2.12    How is the prevention of repeated victimisation ensured?

Provision of victim support services includes:

1) counselling of victims;

2) assisting victims in communicating with state and local government authorities and legal persons.

3) ensuring safe accommodation;

4) ensuring catering;

5) ensuring access to necessary health services;

6) providing necessary material assistance;

7) providing necessary psychological assistance;

8) enabling necessary translation and interpretation services for receiving the services provided within the framework of victim support services;

9) providing other services necessary for physical and psycho-social rehabilitation of victims.

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

Estonia’s Code of Criminal Proceedings does not differentiate between victims of Estonian nationality and foreign victims. While the language of criminal proceedings is Estonian, victims who are not proficient in the Estonian language shall be ensured the assistance of an interpreter or translator. In the case of doubt, the body conducting proceedings shall determine the proficiency in the Estonian language. If it is impossible to determine the proficiency in the Estonian language or it proves to be insufficient, the assistance of an interpreter or translator shall be ensured. If a victim is not proficient in the Estonian language, translating of the text which is essential for understanding the substance of the ruling on termination of criminal proceedings or the court judgment or for ensuring the fairness of the proceedings into his or her native language or a language in which he or she is proficient may be requested within ten days. A victim may also request translating of other documents which are essential for ensuring his or her procedural rights. If the body conducting the proceedings finds that the request for translating other documents is not justified, such body shall formalise the refusal by a ruling.

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?

A victim may file an appeal with a prosecutor's office against refusal to commence criminal proceedings. Depending on who issued the disputed refusal, this appeal is heard by either the state or the district prosecutor’s office.

A victim also has the right to file an appeal with the prosecutor's office against a procedural act or order of the investigative body if he or she finds that violation of the procedural requirements in the performance of the procedural act or preparation of the order has resulted in the violation of his or her rights. Similarly, this appeal is heard by either the state or the district prosecutor’s office or the county court.

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?

Yes, this role is established in the Estonian Code of Criminal Proceedings.

The prosecutors’ code of ethics explicitly stipulates that the prosecutor is to take into account the rights of victims and witnesses as well as human rights in general.

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?

Yes, in the appeal’s process described above the prosecutor acts as a supervisory body to the body conducting proceedings and a prosecutor of the Office of the Prosecutor General conducts supervision of District Prosecutor’s Offices. During the proceedings, the prosecutor can also request a letter of explanation regarding said supposed violation from the relevant member of the state’s organ in order to assess whether a violation of the victim’s rights has indeed occurred. 

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

Yes.

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

Yes, the appeals’ process described above can be initiated (and, in practise, is initiated) by the supervisory department of Office of the Prosecutor General.

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

Yes.

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, members of the Prosecutor’s Office and law enforcement agencies routinely take part in relevant training programs as well as conduct them themselves.