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?

 Answer: Yes. In Article 22 of the Criminal Procedure Code- Definition of terms it is defined that injured partiesare persons whose personal or property right of some type was violated or endangered by a criminal offence. Witness of crime is term that is defined also within provisions of the Criminal Procedure Code as a persons who are likely to provide information regarding the criminal offence and the perpetrator and other relevant circumstances

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?    

Answer: Witnesses shall be examined separately and in the absence of other witnesses.  Witness shall give their testimony orally. Special regimes are applied when a minor is heard, especially if a minor was injured by the criminal offence, special care shall be taken in order to ensure that the hearing would not have an adverse effect on the minor’s mental condition. When necessary, the minor shall be heard with assistance of a psychologist or another expert.

Moreover,  Injured parties who are victims of a criminal offence against sexual liberty, as well as children being examined as witnesses, shall be entitled to testify in separate premises before a judge and a court reporter, whereas the Prosecutor, accused person and defense attorney shall be given the possibility to view the course of hearing from other premises and to put questions to the witness, after having been duly instructed by the court thereon. The court may decide that this regime be also applied to the testimony of the injured party who is the victim of discrimination.

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?

Answer: Term of vulnerable persons is used in Montenegro within provisions of laws, but not within the framework of the criminal legislation. Criminal Procedure Code doesn’t contain this definition.

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?

Answer: Yes.

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

Answer: They are established in the law- Criminal Procedure Code.

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).

Answer: According to general provisions of the Criminal Procedure Code all parties in criminal procedure must be treated fairly and with dignity, must be notified, to be present and to be heard, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights.

 State Prosecutor and other public authorities participating in the proceedings shall instruct  all participants in the proceedings, who are likely to omit to perform an action in the proceedings or fail to exercise their rights because of that, of the rights they are entitled to pursuant to the present Code as well as of the consequences of the failure to act

In the course of investigation, injured parties shall be entitled to call attention to all facts and to offer evidence important for the criminal case and for their claim under property law.

At the main hearing, the injured party shall be entitled to offer evidence, to examine the defendant, witnesses and expert witnesses and to put forward remarks and explanations as regards their statements as well as to make other statements and proposals.

The injured party shall be entitled to inspect files and objects serving as evidence. The inspection of the files may be denied to the injured party until an order on the conduct of investigation has been made or until s/he has been examined as a witness. The injured party who is the victim of a criminal offence against sexual freedom shall have the right to be heard and to have the procedure be conducted by a judge of the same sex, if so allowed by the staff composition of the court. In cases when the criminal procedure is conducted for a criminal offence punishable by an imprisonment sentence exceeding three years and the injured party can not bear representation expenses according to his/her financial standing, s/he may be appointed a proxy at his/her request if the representation of the injured party by the proxy is in the interest of fairness. If the injured party is a minor, during the entire criminal procedure the court shall by virtue of office assess whether s/he needs to be appointed a proxy.

 Regarding witnesses if reasonable concern exists that by giving a statement or answering certain questions witnesses would put in danger their spouse’s, close relative’s or a close person's life, health, physical integrity, freedom or property of great value, witnesses may withhold, answering certain questions or giving the statement altogether until their protection is secured. Witness protection shall consist of special ways of participating and hearing witnesses in the criminal procedure. At their request, whistle blowers heard as witnesses may also be provided protection.Protection of witnesses and other persons may be secured beyond the criminal procedure as well, in line with the law regulating witness protection.

Also, juveniles in criminal procedure are subjects of specific regime, providing them respect of the best interest of juveniles, prohibition of discrimination on any grounds, respect of juvenile privacy in all stages of the proceedings as well as obligatory training and specialization of judges, prosecutors, defense lawyers participating in criminal proceeding where juvenile is involved.

If witnesses are persons with speech or hearing impairment, they shall testify with the help of professional staff.

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.?

Answer: They are informed of their rights by State Prosecutor or court depending on the stage of the criminal proceeding. They are informed in formal manner followed by their signature confirming that they are informed of their rights and that they understand those rights all of which  shall be entered in the record. Also, relevant information concerning their rights they can find on the official website of the State Prosecutor’s Office.

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

Answer: Failure to inform them of their rights in a formal way is reason for inadmissibility of the evidence obtained in a unlawful manner. Also, that could be a basis for initiating a disciplinary proceeding against prosecutor for not exercising his function in a proper manner.

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?

Answer: See above for juveniles. Witnesses who are in another country and witnesses who can not obey the summons due to their old age, illness or disability (physical or mental) may be heard in their residence, and in exceptional cases by means of technical devices for the transmission of image or sound, so the parties can ask them questions even though they are not present in the same premises as the witness. For the needs of such a hearing, expert assistance can be provided depending on specific situation of the victim or witness.

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)?

Answer: Yes. In juvenile proceedings the guardianship authority shall have the right to be informed about the course of proceedings, and notified about the right to file motions during the proceeding, and point to facts and evidence that are of significance to rendering the right decision. The juvenile prosecutor shall notify the guardianship authority of any proceeding against a juvenile. If prosecutor fails to do so, that duty shall be borne by the court for the rest of the proceeding. In other cases depending on specific situations other bodies dealing with the rights of that persons shall be informed.

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?

Answer: Testimony of juvenile persons shall be carried out in the presence of the juvenile’s legal custodian and, as a rule, with the assistance of professional support staff, except where it is contrary to the interest of juvenile. In our criminal procedure code it is stated that Every person summoned as witness shall answer the summons and, unless otherwise prescribed by the law, shall testify as well. Exceptions are, inter alia, minors who, taking into consideration their age and mental development, are not capable to comprehend the importance of the right that they are not obliged to testify. Also, provisions of the Criminal Procedure Code governing sanctions for refusing to give testimony shall not apply to a juvenile under 14 years of age (child).

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

Answer: Yes as regards children (persons under 14 years of age). Criminal Procedure Code prescribe that the following persons shall not be examined as witnesses: 1) persons who would by giving testimony violate the duty of keeping the data secret within the meaning of regulations prescribing data secrecy, until the competent authority releases them from that duty;2) defense attorneys may not testify with regard to information accused persons have confided to them in their capacity as defense attorneys;3) persons who would by giving testimony violate the duty of keeping a professional secret (religious confessors, attorneys-at-law, medical professionals and other health system employees, journalists, as well as other persons) unless they are relieved from this duty by a special regulation or statement of a person who benefits from the secret keeping4) minors who, taking into consideration their age and mental development, are not capable to comprehend the importance of the right that they are not obliged to testify. Moreover, following persons shall be exempted from the duty to testify:1) the accused persons’ spouses and their extra-marital partners; 2) accused persons` direct blood relatives, collateral blood relatives up to the third degree as well as and their relatives by marriage up to the second degree; 3)  Accused persons' adopted children or adoptive parents, or accused persons’ foster parents and foster children.Exemption from the duty to testify referred to above shall not relate to persons that were invited to testify in the procedure for the criminal offence of neglecting and abusing a minor, domestic violence or violence in a family community and incest, when a minor person is the injured party.

The instruction and the answer shall be entered in the record. If grounds exist for a person to refuse to testify with regard to one of the accused persons, that person shall be exempted from the duty to testify with regard to other accused persons as well if his/her testimony may not, by nature of the matter, limited only to other accused persons.

Regarding mentally disabled persons law refers only it forbidden to take an oath before testimony from persons who due to their mental conditions are unable to comprehend the importance of the oath.

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?

Answer: See above.

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?

Answer: All actions taken during the course of criminal proceedings shall, as a rule, be recorded by audio or audiovisual recording devices. Previously, this shall be made known to the person examined, who shall be advised of his right to request the copy of the record in order to check the deposition given. A recording shall be kept with court as long as the respective criminal file is kept.

For the purpose of protecting witnesses when needed special ways of participating and hearing witnesses in the criminal procedure are: hearing of witnesses under pseudonym, hearing with assistance of technical devices (protective wall, voice simulators, devices for transmission of image and sound) and alike. If special ways of participating and hearing witnesses in the procedure consists of withholding personal data as well as of hiding the face of the witness, hearing shall be done through technical devices for transmission of image and sound. The specialist shall operate a technical device. During the hearing, face and voice of the witness shall be changed. During the hearing, witnesses shall be in the room other than the one where the investigating judge and other persons present at the hearing are. The investigating judge shall ban all the questions which could lead to revealing the identity of witnesses. After the hearing has been completed, witnesses shall sign the record using pseudonym only in the presence of the investigative judge and court reporter.

2.12    How is the prevention of repeated victimisation ensured?

1. Answer: Prevention of repeated victimisation is ensured by a number of measures contained in the Criminal Procedure Code including taking actions urgently especially when the victims are juveniles and rendering decisions, ensuring safety of victims and witnesses when approaching prosecutor’s office premises, ensuring of the separate room for the victim or witness in order to avoid meeting with accused person,  inform victim and witness of their rights, in certain cases inform welfare service or invite a person with special relevant knowledge to assist victim or witness. when the victim or witness is juvenile premises for conducting hearing must be adapted to juvenile in order to feel comfortable and where juvenile will feel safe, language of the prosecutor must be adapted to be understandable for juvenile, always when possible using technics for audio visual recording and video link, also victims and witnesses especially juveniles must be protected from possible media abuse.

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

Answer: Those rights are foreseen for all persons who are under Montenegrin jurisdiction when participating in criminal proceedings on the territory of Montenegro.

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?

Answer: Rights of victims, witnesses and vulnerable persons are foreseen within the provisions of the Criminal Procedure Code as well as enforcement of those rights and consequences for not abiding those rules by State Prosecutor. State Prosecutor shall inform all participants in criminal proceeding of their rights during preliminary investigation and investigation and make official records of those actions.

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?

Answer: This role of prosecutors is established in the Criminal Procedure Code and in Code of ethics as well.

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?

Answer: State prosecutors are leading preliminary investigation and investigation. They have supervisory functions over other state authorities which are all obliged to help state prosecutor and provide him with all necessary support, information and data upon his/her request for assistance.

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

Answer: Yes.

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

Answer: Yes.

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

Answer: Yes. In every specific situation prosecutors interact with relevant state bodies when needed and civil societies and NGOs in order to better fulfil his/her functions.

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?

Answer: It is a right and a duty of all state prosecutors to obtain specific training on this issues and to be well educated. This duty also involve prosecutorial staff and law enforcement agencies. Certain trainings are carried out by senior or experienced prosecutors with relevant knowledge to share.

3.8      Any other relevant point you wish to raise.