CCPE-BU(2017)1
Strasbourg, 14 February 2017
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)
Questionnaire for the preparation of the CCPE Opinion No. 12 (2017):
“The rights of victims, witnesses and vulnerable persons”
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?
A definition of a victim in the Czech Republic is established in the Act on Victims of Crime (the Act No. 45/2013 Coll., as amended). According to Sec. 2, par. 2 and 3 of the Act on Victims on Crime a victim meansa natural person, who suffered or allegedly suffered bodily harm, material or non-material harm, or at the expense of which the perpetrator enriched himself. In case the victim was killed by the criminal act, his relative in direct line, sibling, adoptive child, adoptive parent, spouse or registered partner or companion, if he is a close person, are also considered to be victims.
In the particular circumstances, a victim or an especially vulnerable victim (see below) can by an aggrieved person or witness within the criminal proceedings.
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 is a special regime for victims of:
- a criminal offence of trafficking in human beings; and
- a criminal act against human dignity in sexual area or a criminal act that encompassed violence or threat of violence, if there is an increased risk of causing secondary harm to the victim.
From the 1st of April 2017, there will be a special regime for victims of:
- a criminal offence of trafficking in human beings;
- a criminal offence of terrorist attack;
- a criminal act against human dignity in sexual area, a criminal act that encompassed compulsion, violence or a threat of violence, a criminal act committed for belonging to a nation, race, ethnic group, religion, class or other group of persons or a criminal act committed in favor of an organized criminal group, if there is an increased risk of causing secondary harm to the victim.
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 just a definition of a vulnerable victim in general sense in the Act on Victims of Crime. According to this Act vulnerable victims are called especially vulnerable victims.
Especially vulnerable victim, according to Sec. 2, par. 4 of the Act on Victims of Crime, means:
- a child;
- a person with a physical, mental or psychic handicap or sensory dysfunction that in connection with various obstacles can prevent full end effective fulfilment of oneself in the society in comparison to other persons;
- a victim of a criminal offense of trafficking in human beings;
- a victim of a criminal act against human dignity in sexual area or a criminal act that encompassed violence or threat of violence, if there is an increased risk of causing secondary harm to the victim especially with regard to his age, gender, race, nationality, sexual orientation, religion, medical condition, intellectual development, ability to express oneself, current situation in life or with regard to the relationship with the suspect of the crime or dependence on such person.
From the 1st of April 2017 the especially vulnerable victim will mean:
- a child;
- a person of a high age or a person with a physical, mental or psychic handicap or sensory dysfunction if these facts can in the context of circumstances of the case and personal circumstances prevent of his/ her full end effective fulfilment in the society in comparison to other persons;
- a victim of the criminal offence of trafficking in human beings and of the criminal offence of terroristic attack;
- a criminal act against human dignity in sexual area, a criminal act that encompassed compulsion, violence or a threat of violence, a criminal act committed for belonging to a nation, race, ethnic group, religion, class or other group of persons or a criminal act committed in favor of an organized criminal group, if there is an increased risk of causing secondary harm to the victim especially with regard to his age, gender, race, nationality, sexual orientation, religion, medical condition, intellectual development, ability to express oneself, current situation in life or with regard to the relationship with the suspect of the crime or dependence on such person.
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?
There are specific rights of:
- victims of crime;
- witnesses and aggrieved persons (an aggrieved person means a person to whom was caused bodily harm, material damage or non-material harm by a criminal offence, or those at whose expense has the offender enriched himself by a criminal offence; an aggrieved person is a party to criminal proceedings and this person may be a victim according to the Act on Victims of Crime) within the framework of criminal proceedings;
- vulnerable victims (according to the Act on Victims of Crime so called especially vulnerable victims); and
- some witnesses and aggrieved persons, which we may consider as vulnerable.
2.2 If yes, are they established in the law or other legal instruments?
The rights of victims and especially vulnerable victims are established in the Act on Victims of Crime.
The rights of witnesses, aggrieved persons and witnesses and aggrieved persons who may be considered as vulnerable, are established in the Code of Criminal Procedure.
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).
Victims
According to the Act on Victims of Crime, a victim has the right to:
- expert assistance;
- information;
- protection against impending threat;
- protection of privacy;
- protection from secondary harm; this right include, in particular, the right to:
o ask for measures preventing a contact between a victim and a person, which a victim have marked as a suspicious or against whom the criminal proceedings is conducted;
o be questioned, within the questions directed to a victim´s intimate sphere only if it is unnecessary; questions directed to a victim´s intimate sphere need to be asked especially gently and in such a way there will be no need to repeat it again;
o ask to be questioned by a person of the same sex;
o make a statement, in any stadium of criminal proceedings, what impact had a criminal offence on the victim’s life;
- financial assistance.
An especially vulnerable victim has the same rights as a victim (see above), but within the rights to protection from secondary harm, an especially vulnerable victim has, in particular, also the right to:
- be questioned, if it is possible, by a specially trained person; if the victim is a child, the questioning has to be executed by a specially trained person, in principle, always;
- be questioned in such a way, there will be no need to repeat the questioning; if there is the need to question a victim again, the questioning should execute the same person as the former one;
- be questioned in such a way, there will be no visual contact between a victim and a person, which a victim have marked as a suspicious or against whom the criminal proceedings is conducted; in particular, the audio-visual technology is used;
Certain victims and all especially vulnerable victims have a right under the conditions of Sec. 51a of the Code of Criminal Procedure to legal assistance of an agent free of charge or at a reduced rate (see Sec. 6, par. 1 of the Act on Victims of Crime together with Sec. 51a of the Code of Criminal Procedure).
Witnesses
A witness has, in particular, the right to:
- refuse testimony;
- not to be questioned about circumstances related to classified information protected by a special legal enactment, that he/she is obliged to keep confidential, unless he/she was relieved of this obligation by a competent authority;
- remuneration of necessary expenses and compensation for proven lost income.
A witness under 18 years old:
- has also the right to bequestioned about circumstances, reviving of which in memory could, in respect of his age, adversely affect his intellectual and moral development, with especial care and concerning its contents in such a way that it generally should not be necessary to repeat the questioning in further proceedings (Sec. 102 of the Code of Criminal Procedure);
- bears witness obligatorily in the presence of the authority of social and legal protection of children (see the Act No. 359/1999 Coll., on Social and Legal Protection of the Children, as amended) or any other person having experience with education of juveniles; and
- can bear witness in the presence of parents.
A witness at which the circumstances indicate that he/she (or persons close to him/her) is under a threat of bodily harm or any other serious risk of violation of their fundamental rights in relation to the testimony, and if a witness protection cannot be reliably ensured in another way, has a right to concealing the identity of the witness (see Sec. 55, par. 2 of the Code of Criminal Procedure).
A witness, who is in danger in connection with staying of the accused or convicted person at liberty, can request on specific information concerning an accused or convicted person detention (see Sec. 103a of the Code of Criminal Procedure).
Aggrieved persons
An aggrieved person has, in particular, a right to:
- make proposals for additional evidence;
- inspect files;
- attend negotiation of agreement on the guilt and punishment;
- attend the trial and public session held on an appeal or approval of an agreement on the guilt and punishment;
- comment on the matter before the proceeding is concluded.
- claim compensation of damage harmed by crime.
Some specific aggrieved persons which we may consider as vulnerable (e. g. aggrieved persons who suffered a grievous bodily harm by an intentional criminal offence or children) have a right to legal assistance of an agent free of charge or at a reduced rate.
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
Irrespective if the criminal proceedings is conducted or not, in particular, the Police of the Czech Republic and authorities involved in criminal proceedings, are obliged to comprehensively inform the victims of their rights and allow them to fully exercise these rights. The same apply for the especially vulnerable victims. The specific conditions for providing information on rights of victims of crime are set in Sec. 7 et seq. of the Act on Victims of Crime.
Witnesses
According to the Code of Criminal Procedure(see Sec. 101), it is always necessary to instruct a witness, prior to questioning, about the right to refuse testimony and if necessary, also about prohibition of questioning or the possibility to proceed, as well as about the fact that he is obliged to tell the complete truth and not withhold anything. Furthermore, the witness must be instructed about the meaning of a testimony in the view of a public interest and about criminal consequences of a false testimony. If a person under fifteen years of age is questioned as a witness, he is instructed accordingly to his age.
Aggrieved persons
In the criminal proceeding the authorities involved in criminal proceedings are obliged to advise the aggrieved person on his rights and to provide him/her a full possibility to exercise them (see Sec. 2, par. 15 of the Code of Criminal Procedure).
The information about the rights of victims, witnesses and aggrieved persons can be also seen at websites of the Supreme Public Prosecutor’s Office (see http://www.nsz.cz/index.php/en).
2.5 What kind of penalties and sanctions are established for violation of these rights?
Witnesses
Violation of the rights of witnesses during a testimony generally causes an inefficiency of this evidence.
Victims and aggrieved persons
Violation of rights of victims and aggrieved persons (and also of witnesses) by a public prosecutor can generally cause committing a disciplinary violation to which public prosecutors are responsible according to the Act on Public Prosecutor´s Office (the Act No. 283/1993 Coll., as amended); disciplinary violation means a deliberate violation of the public prosecutor’s duties, the public prosecutor’s deliberate behaviour or conduct diminishing the trust in the Public Prosecutor´s Office activity or proficiency of its operation or degrading reputation and dignity of the public prosecutor’s position.
Similarly, police officers are responsible, according to the Act on the Service of Members of Security Forces (the Act No. 361/2003 Coll., as amended) for disciplinary offences; disciplinary offence means a deliberate action, which violate an official duty and it is not a criminal offence or an action, which has the character of minor offence or other administrative offence.
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?
Vulnerable victims
According to the Act on Victims of Crime an especially vulnerable victim due to his/her age is:
- a child;
- a person with a physical, mental or psychic handicap or sensory dysfunction that in connection with various obstacles can prevent full end effective fulfilment of oneself in the society in comparison to other persons.
From the 1st of April 2017, the especially vulnerable victim due to his/her age will be:
- a child;
- a person of a high age or a person with a physical, mental or psychic handicap or sensory dysfunction if these facts can in the context of circumstances of the case and personal circumstances prevent of his/ her full end effective fulfilment in the society in comparison to other persons.
“Vulnerable witness”
A witness under 18 years old:
- has the right to bequestioned about circumstances, reviving of which in memory could, in respect of his age, adversely affect his intellectual and moral development, with especial care and concerning its contents in such a way that it generally should not be necessary to repeat the questioning in further proceedings (Sec. 102 of the Code of Criminal Procedure);
- bears witness obligatorily also in the presence of the authority of social and legal protection of children (see the Act No. 359/1999 Coll., on Social and Legal Protection of the Children, as amended) or any other person having experience with education of juveniles; and
- can bear witness in the presence of parents.
“Vulnerable aggrieved persons”
An aggrieved person under the age of 18 is entitled to legal assistance provided by an agent free of charge(see Sec. 51a of the Act on Victims of Crime).
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 these situations, the public prosecutor may impose to an accused person one of the preliminary measures established in Sec. 88c et seq. of the Code of Criminal Procedure; in particular:
- a measure of a prohibition to contact certain persons; or
- a prohibition to enter a residence.
Under the conditions in the Code of Criminal Procedure (see Sec. 67 et seq.) an accused person can be also taken into custody by decision of a court and in pre-trial proceedings by a judge upon a motion of a public prosecutor.
Under the conditions in the Code of Criminal Procedure (see Sec. 73 et seq.) an authority deciding custody can substitute it by:
- a guarantee from an interest citizens association or a trustworthy person capable to advantageously influence behaviour of the accused person;
- a written assurance from the accused person;
- a supervision of an probation officer over the accused person;
- one of the preliminary measures; or
- a pecuniary guarantee (bail).
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?
Vulnerable victims can bear witness:
- alone;
- with an agent; or
- with a confidant.
A witnesscan generally bear witness:
- alone;
- with an agent;
A witness which is a child younger than 18, if he/she is questioned as a witness about circumstances, reviving of which in memory could, in respect of his age, adversely affect his intellectual and moral development:
- bears witness obligatorily in the presence of the authority of social and legal protection of children (see the Act No. 359/1999 Coll., on Social and Legal Protection of the Children, as amended) or any other person having experience with education of juveniles; and
- can bear witness also in the presence of parents, if it may help to proper leading of a testimony.
2.9 Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?
According to Sec. 100 of the Code of Criminal Procedure, a right to refuse testimony as a witness has a person related of the accused person in direct lineage, his sibling, adoptive parent, adoptive child, spouse, partner and companion. A witness is entitled to refuse testimony also if it could cause danger of criminal prosecution to himself, his relative in direct lineage, sibling adoptive parent, adoptive child, spouse, partner and companion or to other persons in family or similar relationship to him, whose detriment would the witness perceive as his own.
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?
Vulnerable victims
Any person, who feels to be a victim of a committed crime, must be treated as a victim unless it is found otherwise or unless it is a clear abuse of the position of the victim according to the Act on Victims of Crime (presumption of a victim – see Sec. 3, par. 1 of the Act on Victims of Crime).
From the 1st of April 2017, there will be established in the Act on Victims of Crime, that if there will be any doubts if the victim is especially vulnerable victim or not, it will be necessary to consider a victim as an especially vulnerable victim.
“Vulnerable witness”
A witness younger than 18 - the evaluation is made by an authority involved in criminal proceedings who conduct a questioning (“prior to questioning a witness it is always necessary to identify him” - see Sec. 101, par. 1 of the Code of Criminal Procedure).
A witness at which the circumstances indicate that he/she (or persons close to him/her) is under a threat of bodily harm or any other serious risk of violation of his/her fundamental rights in relation to the testimony - the evaluation is made by an authority involved in criminal proceedings who conduct a questioning – in particular by a Police authority; if a Police authority finds no reason for providing this protection, even though the witness demands it, the Police authority is obliged to submit the matter to the public prosecutor to review it (see Sec. 101a of the Code of Criminal Procedure).
A witness, who is in danger in connection with staying of the accused or convicted person at liberty - the evaluation is generally made by the requested authority (i. e. detention centre). If a witness doesn´t file this request and accused or convicted person was released or escaped, and there is a reasonable concern that there is a danger in relation to the accused or convicted person being at liberty, an authority involved in criminal proceedings, or other authority set in Sec. 103a, par. 2 of the Code of Criminal Procedure, is obliged to inform an Police authority; Police authority is than obliged to take necessary measures to ensure the safety of witness.
“Vulnerable aggrieved persons”
A legal assistance provided by an agent free of charge for an aggrieved person under the age of 18 is evaluated by a judge in pre-trial proceedings and in trial proceedings by the presiding judge (see Sec. 51a of the Code of Criminal Procedure). The petition for this decision is in pre-trial proceedings submitted by an aggrieved person through the public prosecutor, who attaches his opinion.
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?
According to the Act on Victims of Crime an especially vulnerable victim has a right to be questioned in such a way, there will be no visual contact between a victim and a person, which a victim has marked as a suspicious or against whom the criminal proceedings is conducted; to securing of this right is used, in particular, the audio-visual technology (see Sec. 20, par. 4).
According to Sec. 52a of the Code of Criminal Procedure, technical devices for transferring picture and sound may be used in the course of performing acts in criminal proceedings, if it is necessary for the protection of rights of persons, especially with regard to their age or health condition, or if it is required by security or other serious reasons and if the nature of these acts allow it and if it is technically possible.
To protective measures within the framework of the criminal proceedings see the chapter no. 2. 7.
2.12 How is the prevention of repeated victimisation ensured?
There are special provisions in Sec. 17 et seq. of the Act on Victims of Crime providing protection from secondary harm (secondary victimisation).
2.13 Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?
According to the Act of Victims on Crime, a victim has, in principle (if the Act doesn´t set anything else), the rights according to this Act irrespective of his/her nationality.
The rights according to the Code of Criminal Procedure belong, in principle, to particular persons, irrespective of their nationality.
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?
Authorities involved in criminal proceedings are according to law generally obliged to:
- advise the aggrieved person on his rights and to provide him a full possibility to exercise them;
- inform the victims and especially vulnerable victims of their rights and allow them to fully exercise these rights;
- instruct witness about the right to refuse testimony and if necessary, also about prohibition of questioning or the possibility to proceed according to provisions on concealing the identity of a witness, as well as about the fact that he is obliged to tell the complete truth and not withhold anything; a witness must be also instructed about the meaning of a testimony in the view of a public interest and about criminal consequences of a false testimony.
According to Sec. 174 of the Code of Criminal Procedure a public prosecutor conducts supervision over compliance with the legality in pre-trial proceedings.
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 of public prosecutor as a supervisor over compliance with the legality in pre-trial proceedings is established in Sec. 174 of the Code of Criminal Procedure. This role is also set in the Instruction of General Nature on Criminal Proceedings (the Instruction of General Nature of the Supreme Public Prosecutor No. 8/2009 Coll., as amended).
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?
There are known any capital problems within a role of public prosecutor as a supervisor over compliance with the legality in pre-trial proceedings.
Authorities involved in criminal proceedings are generally obliged to assist each other in execution of tasks arising from the Code of Criminal Procedure (see Sec. 7 of the Code of Criminal Procedure).
In pre-trial proceedings, a public prosecutor can, inter alia, give binding instructions for the investigation of the criminal offences to Police authority (see Sec. 174 of the Code of Criminal Procedure).
Public authorities, legal entities and natural persons are according to the Code of Criminal Procedure generally obliged to comply with request of authorities involved in criminal proceedings in the performance of their tasks; public authorities are also obliged to immediately notify the public prosecutor or police authorities of facts indicating that a criminal offence has been committed (see Sec. 8, par. 1).
3.4 Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?
Victims
In general, victims are entitled to apply directly to prosecutors for protection of their rights, because a public prosecutor is obliged to allow them to fully exercise their rights (see Sec. 3, par. 4 of the Act on Victims of Crime).
Witnesses
In general, witnesses may apply for protection of their rights during bearing witness to the authority which conducts a questioning. If there is a public prosecutor, a witness may apply to him/her.
Aggrieved persons
In general, aggrieved persons are entitled to apply directly to prosecutors for protection of their rights, because a public prosecutor is obliged to provide to aggrieved persons a full possibility to exercise their rights (see Sec. 2, par. 15 of the Code of Criminal Procedure).
An aggrieved person (i.e. also a victim if he/she takes part in criminal proceedings as an aggrieved person) has in the criminal proceedings the right to ask a public prosecutor to eliminate delays in the proceedings or any defects in the procedure of a Police authority (see Sec. 157a of the Code of Criminal Procedure).
3.5 Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?
In criminal proceedings if a public prosecutor finds out serious deficiencies in a procedure of a Police authority, he/she can point out them to a chief officer of Police authority in writings. A public prosecutor may also submit a supervisory file with a record on deficiencies to the chief public prosecutor, who may discuss a matter with a chef of Police authority and who may propose a remedial measure. If this does not lead up to remedy, chief public prosecutor informs a chief officer of the superior Police authority with the requirement to eliminate the deficiencies (see Sec. 8 of the Instructions of General Nature of the Supreme Public Prosecutor on Criminal Proceedings).
According to Sec. 158, par. 2 of the Code of Criminal Procedure, a public prosecutor is obliged to accept reports of facts suggesting that a criminal Procedure has been committed – a public prosecutor than hand over a criminal complaint to a competent police authority with an instruction to verify. A public prosecutor may also issue an instruction to issue a resolution on initiation of criminal prosecution (see Sec. 14 of the the Instructions of General Nature of the Supreme Public Prosecutor on Criminal Proceedings).
3.6 Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?
Within the criminal proceedings the public authorities, legal entities and natural persons have a general duty to comply with request of public prosecutor in the performance of his/her tasks (see Sec. 8, par. 1 of the Code of Criminal Procedure). All authorities involved in criminal proceedings also generally cooperate with public interest associations and utilise their educational activities (see Sec. 2, par. 7 of the Code of Criminal Procedure).
According to the Act on Victims of Crime (see Sec. 3, par 5), Police of the Czech Republic and authorities involved in criminal proceedings cooperate within providing the assistance to the victims with entities providing the assistance to the victims of crime.
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?
The training of judges, public prosecutors and other persons acting in the judiciary provides the Judicial Academy, which is the central institution of the justice sector for training of judges, public prosecutors and other target groups (see the Act No. 6/2002 Coll., on Courts and Judges, as amended).
3.8 Any other relevant point you wish to raise.
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Brno 15. 3. 2017
Jana Zezulová