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?

There is not any definition of the victim in the Finnish law. The common definition of the victim is said in the legal literature. According to legal literature the victim is

1)the person, who owns the object of legal protection, that has been violated or threatened by a crime

2) the one, who can claim compensation because of the crime

3) the one, whose legal sphere is threatened by the crime

There is no exact definition of the witness in the Finnish law. According to Criminal Procedure Act everybody, except the party of the case,  can be heard as a witness. In the Criminal Procedure Act there are mentioned some situations, when the person, who is in certain position, must not be heard as a witness or when this kind of person may refuse to testify.

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?  

The victims of trafficking in human beings have a possibility to get to the assistance system for victims of trafficking of human beings. They have this possibility even if there is no charge or judgment on trafficking on human beings.  

In Finland we have also so-called safe houses for victims of domestic violence.

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?

We have not any special, official definition of vulnerable person. In the Criminal Investigation Act there are provisions on the procedure, how the police must assess, if the victim of the crime is in the need of special protection. (directive 2012/29/EU)

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, we have some specific rights, that are listed at the point 2.3.

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

They 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).

A victim has the right to

-claim compensation for the damages.

-have a lawyer in the pre-trial investigation and in the court hearing. Under certain circumstances the legal aid is free of charge.

-if a victim is a victim of a sexual crime or other crimes against life, health and freedom and if the victim is heard in the court hearing, he/she has the right to a support person,

-if the victim is summoned to the court hearing to give a testimony he/she has the right to a compensation for the expenses that has been caused by coming to the court hearing

-a right for interpretation of the main documents that has been gathered in the pre-trial investigation and that are presented in the court hearings.

-a right for interpreter in the pre-trial investigation and in the court hearing

-a right to get the decision not to start the pre-trial investigation or to stop the pre-trial investigation and the decision not to prosecute

-a right to get to know when and where the main hearing is and right to get the judgment.

A victim has these rights even whether or not he/she is assessed as a person in the need of special protection

A witness has the right for compensation for the expenses that has been caused for coming to the court hearing.

If a victim is in the need of special protection, in the pre-trial investigation he/she has the right to

-to be heard in pre-trial investigation in a place, that is suitable for vulnerable persons,

-to be heard in the pre-trial investigation by the same investigators

-to be heard in the pre-trial investigation by the investigator, who is same gender as the person himself/herself

In the court hearing the victim or witness can be heard

-so that the defendant is not in the same room

-so that the defendant does not see a victim or a witness, although the defendant is in the same room

-a victim or a witness can be heard via a videoconference if certain conditions, that are mentioned in Criminal Procedure Act, are fulfilled

-A victim or witness can be heard so that his/her testimony is videotaped in the pre-trial investigation and this videotape is seen  in the court hearing. This is possible if certain conditions that are mentioned in Criminal Procedure Act, are fulfilled.

-In certain cases, mainly if it is question of sexual crimes, the main hearing is in closed doors.

-In certain types of documents are ordered secret, if a victim so asks.

-In certain cases the name of a victim and other personal details are ordered secret, if he/ she so asks.

These abovementioned rights are established in law. A victim has these rights if he/she is in the need of special protection and also in some other situations that are mentioned in the Criminal Procedure Act. A witness has these rights also in some situations that are mentioned in that law.

In many court houses it is also possible that a victim and a witness can wait the beginning of the hearing in a place, so that he/she need not meet the defendant. In Finland judges and prosecutors may have training how to deal with vulnerable persons. In some court houses there are also some voluntary persons who inform victims and witnesses about the procedure in court hearings.

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.?

According to Criminal Investigation Act a police has to inform a victim in the pre-trial investigation about many of the rights that are mentioned above. There are also many NGO:s,  that inform victims about their rights. These NGO:s have also data pages and

leaflets where victims can find information.

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

There are not any special penalties for violations of these rights. But a victim or a witness can make an extraordinary appeal on the basis of the procedure of the civil servant (police, prosecutor, judge)

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?

-Children under 15 years of age can be heard so, that their testimony is videotaped in the pre -trial investigation and this video tape is shown in the court hearing. The victims of certain sexual crimes have this same right if they are under 18 years of age and if they ask to be heard like this. Victims that are under 18 years of age and who are in the need of special protection have this same right. Mentally disordered persons can also be heard like this. In these cases the defendant has to have a possibility to make questions for them in the pre-trial investigation.

Persons under 15 years of age and mentally disordered persons can be heard also via videoconference. Persons that can not come to the main hearing for instance for health problems can also be heard via videoconference.

These above-mentioned rights are established in Criminal Procedure Act.

In practice in many courts it is possible that this kind of persons may wait their turn to give their testimony in a peaceful room, where they don´t have to meet the defendant. In practice it is possible in many courts that persons who don´t want to see the defendant may give their testimony behind the curtain.

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)?

In Finland the criminal law cases are separate from civil law cases. The only way to bring these kind of issues to other bodies is that the parties will bring it to the attention of the 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?

In Finland the process is oral. In some situations the person (injured party or witness) may be heard in the main hearing without being presence of a party or another person if the court deems that this is appropriate and such hearing is necessary

(1) in order to protect the person being heard or a person related to said person from a threat directed at life or health;

(2) if the person being heard would otherwise not reveal what he or she

knows about the matter; or

(3) if a person disturbs or attempts to mislead the person being heard during

his or her testimony.

The person (injured party or witness) may also be heard in the main hearing behind a screen or from another place by video.

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

In Finland there is free assessment of evidence. If the injured party does not want to bear testimony he or she does not have to. General rule is that a witness cannot refuse to bear testimony. If the witness is a close relative to the parties he or she can refuse to bear testimony because of the close relationship.

Under 15-year-olds and disabled persons can be heard at the court if the court decides it is appropriate and if it is very meaningful and it is not harmful for the person who will be heard. Court can also order a support person if needed.

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 police proceed the evaluation. The investigator of the case discusses with the assessed person and asks relevant questions from the person. Then the investigator presents the results of the discussion to the head of the investigation. They will fill in a form which is then delivered to the prosecutor of the case.

See the answer 2.8. In most cases children who are victims of sexual crimes can be heard by the police and the hearing video recorded. After the recording the defense can ask relayed by the police new questions if they are appropriate. Then the video recording can be presented in the main hearing without the child being present.

Also during the trial phase the session can be carried out without the audience.

By the request of the injured party his or her identity can be ordered to be in secret.

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? See the answer 2.10.

2.12    How is the prevention of repeated victimisation ensured?

There is no legislation about this issue and the prosecutors do not have answer to this question.

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

It is for all individuals.

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 all the earlier answers, rights of victims are mainly in law and prosecutors have official duty to take care that they are used.

There are specific rules about prosecutors role in Criminal Investigation Act:

Section 2 – The competence of the public prosecutor in the criminal

Investigation

(1) On the request of the public prosecutor, the criminal investigation authority

shall conduct a criminal investigation or perform a criminal investigation

measure. Also otherwise the criminal investigation authority shall comply with

orders given by the public prosecutor intended to ensure clarification of the

matter in the manner referred to in Chapter 1, section 2.

(2) After a matter has been transferred to the public prosecutor following the

conclusion of the investigation, the public prosecutor decides on criminal

investigation measures.

Section 3 – Obligation to cooperate

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?

See the previous answer. The role of prosecutors is established in law.

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?

3.4     

Mainly it is fulfilled, but of course in a particular case it’s always depends on the Prosecutor.

And it’s requires training, that is, unfortunately, too little.

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

Yes they can, but the general rule is that they would be taken into account already in the investigation.

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

Yes, in some cases. See the earlier answers, the prosecutor is mentioned in many rules the one who can make the initiave to the court.

For example (Act on Restraining Orders;Section 5;Imposition of a restraining order may be applied for by anyone who feels threatened

or harassed or by a police, social welfare or prosecuting authority)

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

Yes, and but again the general rule is that they would be taken into account already in the investigation. And the Prosecutor  shall ensure that this is happening.

3.8      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 they do, and we had have some training, but it should be more and on a regular basis and  In addition to revising

3.9      Any other relevant point you wish to raise.