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?

The definition of a victim is provided for in the Criminal Procedure Code of the Republic of Lithuania (hereinafter the Criminal Procedure Code). A victim is a natural person who suffered physical, material or non-material damage [harm] because of a criminal offence, or a family member or a close relative of a natural person who has died because of criminal offence and who, due to the death of that person has suffered physical, material or non-material damage. A person is recognized to be a victim further to the decision of a pre-trial investigation officer or a prosecutor or court’s ruling.

The definition of a witness is also provided for in the Criminal Procedure Code. A witness may by any person who is known to have information about the circumstances relevant for investigation and hearing of the case.

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?

A victim of domestic violence is a person against whom the domestic violence has been used, or a family member of the person who has died because of domestic violence, who has suffered damage because of that person’s death, or also a child who has become a witness of domestic violence or lives in an environment exposed to violence (Republic of Lithuania Law on Protection against Domestic Violence).

A victim of trafficking in human beings is a natural person against whom a criminal offence of trafficking in human beings has been committed, disregarding that person’s will to be recognized as a victim or the moment of such recognition (Recommendations regarding Identification of Victims of Trafficking in Human Beings, Pre-trial Investigation and Inter-institutional Cooperation).

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?

The Criminal Procedure Code does not provide for a definition of a vulnerable person. However, in the criminal proceedings underage victims are always considered as especially vulnerable due to their age and social maturity, which means that usually all measures for protection against the secondary victimization are applied.

     

    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?       

The rights of victims and witnesses are defined in the Constitution of the Republic of Lithuania, Criminal Procedure Code, Recommendations approved by the Prosecutor General (hereinafter the Recommendations). Granting of anonymity or partial anonymity and specifics of questioning an underage witness or victim may be considered as specific rights of the witnesses and victims. Recommendations regarding Assessment of a Victim’s Special Needs for Protection provide for the procedure for assessing the special needs for protection of the victims in the criminal proceedings and the grounds for application of special protection means.  

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

The rights are established in the Criminal Procedure Code, laws and Recommendations.

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).

Pursuant to Article 31 Paragraph 3 of the Constitution of the Republic of Lithuania, a witness is advised that it shall be prohibited to compel anyone to give evidence against himself, or his family members or close relatives.

The victim has the following rights: to obtain information about the course of criminal proceedings involving him; to submit requests; to apply for disqualification; to get access to the pre-trial investigation material during the pre-trial investigation and trial; to appeal against actions and decisions of a pre-trial investigation officer, prosecutor, pre-trial judge and the court; to provide evidence; to receive compensation for expenses sustained as a result of his participation in the criminal proceedings; to obtain contact details in order to keep in contact with regards to the case; to be provided with translation and interpretation services; the right to procedural equality of the rights of foreign citizens and citizens of the Republic of Lithuania; the right to receive compensation for damage sustained as a result of the criminal offence; to be granted protection; to receive legal assistance; to have an accompanying person; to be present while his special protection needs are being assessed and to get special protection measures; to appeal against the court judgement and court ruling; to deliver the final speech. When special protection measures are being considered, it is recommended to follow certain guidelines such as: non-public hearing of the case; presence of an accompanying person; the questioning is conducted by the officer of the same gender as the person to be questioned; the questioning to be conducted by a specialized officer; the repeated questioning to be conducted by the same officer; the right to have a translator/interpreter has to be safeguarded to a victim of a criminal offence who does not understand the Lithuanian language or who has speech, hearing, mental disability, or victim’s representative; notification about the suspect being released or suspect’s escape from detention facility; notification about the arrest of the suspect; notification about the protection measures provided for in the legal acts and the procedure for application of such measures. Participation of statutory representative. Participation of authorised representative. Questioning conducted using sound and video remote communication means. Questioning conducted at the pre-trial judge’s. Questioning conducted in the premises specially adapted for questioning of children. Questioning to be conducted only once. Video and sound recording to be made during questioning. Questioning to be conducted in the absence of the suspect (at pre-trial judge’s). Presence of specialized professionals in the questioning.

The witness has the following rights: to give testimony in his mother tongue and use interpreter/translator’s services where questioning is conducted in the language he does not understand; to review the record of his questioning and make amendments and corrections in it; to request for making sound and video recording during his questioning; to write down his testimony himself; to apply for the measures preventing from criminal influence, following the procedures and referring to the grounds provided for in the laws; to get compensation for the expenses incurred; to have a representative.                                                                                                                                            

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.?

A natural person who has suffered damage [harm] caused by a criminal offence has a right to address in oral or written form a pre-trial investigation authority or prosecutor and request for commencement of pre-trial investigation. In the course of pre-trial investigation, prior to conducting a questioning of a victim or a witness, the person to be questioned is presented with a record of explanation of the rights and duties of the witness (victim) and the annex thereto, and the person to be questioned confirms by his signature that he has been informed of his rights and duties.

At present, in addition to the summons to the court, an informational brochure “What to do when you are summoned to give statements” is enclosed; also, in the website www.teismai.lt one can read a practical-methodological guide “Psychological support to the victims and witnesses and their protection during judicial proceedings”.

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

Prosecutor or pre-trial investigation officer must ensure that the parties of the proceedings are able to efficiently exercise their rights that are granted to them during the proceedings. A prosecutor who fails to fulfil his official duties may be subjected to official inspection, and his position may be considered in the Commission for Prosecutors’ Ethics; also,  the Criminal Code of the Republic of Lithuania (hereinafter the Criminal Code) provides for criminal liability for failure to fulfil official duties or abuse of official powers.

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?

The Criminal Procedure Code does not establish the age limits of a person summoned to give statements as a witness. Thus, even children of young age may be questioned as witnesses when required, provided that they are capable of understanding the important issues relevant to the case and giving correct statements in relation thereto.

Also, according to the Criminal Procedure Code, a witness cannot be a person who, according to the statement issued by healthcare institution or conclusion drawn up by forensic psychiatrist or forensic professional is not capable of properly understanding the circumstances relevant for the case and giving statements related thereto due to his physical or mental disabilities [disorders].                                                                                                          

When an underage witness who is under the age of sixteen, and in court’s discretion, a person under the age of eighteen, is questioned, statutory representatives of the witness are also summoned; in addition, an educational professional or representative of the state child rights protection institution may be summoned to the questioning.

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)?

As soon as police officers arrive to the scene of domestic violence crime, they inform the person who has suffered from domestic violence about availability of assistance and, with victim’s being aware of, notify a specialized support centre about the incident. Upon receipt of notification from the police, the specialized support centre immediately contacts the person who has suffered the violence and offers him a specialized complex assistance. The police officers immediately, but no later than the next working day, notify a child rights protection office, if an underage has experienced domestic violence, or was a witness to the domestic violence, or lives in the environment where violence is being used, or if the person suspected of violence is underage. With the view to provide the victim of violence with long-term assistance, cooperation with municipal or non-governmental organizations dealing with crisis and providing with shelter or accommodation is maintained; also, officers cooperate with institutions rendering social services, police offices, healthcare institutions and institutions providing legal assistance. Upon discovery of the fact that children were the witnesses to the violence and (or) the violence was used against them, a specialized support centre informs the Child Rights Protection Division (Office) of Municipality Administration operating in the territory of the victim’s place of residence.

The Criminal Procedure Code provides for a coercive measure namely, obligation to live separately from the victim and (or) not to approach the victim in a certain distance; this coercive measure is imposed upon prosecutor’s request that is approved by pre-trial judge’s ruling. Imposition of this particular coercive measure is grounded on the reasonable presumptions that a suspect might unlawfully make influence on the victim or might commit new criminal offences against the victim or the persons living with him.

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?

A representative of an underage witness or underage victim is entitled to be present in the questioning. If the prosecutor believes that presence of the representative may affect the quality of the questioning as well as have effect on the person to be questioned, he must either explain this to the representative so that he refuses to be present in the questioning, or seek for pre-trial judge’s ruling on prohibiting the representative to be present in the premises where questioning is conducted, but allowing him to watch the real-time sound and video recording of the questioning.

Upon request of the parties of the proceedings or on the initiative of pre-trial investigation officer, prosecutor or pre-trial judge, a representative of state child rights protection institution or a psychologist must be invited to the questioning of an underage witness or underage victim; these persons help to question the underage considering his social and psychological development.

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

If a person who according to the statement issued by healthcare institution or conclusion drawn up by forensic psychiatrist or forensic professional is not capable of properly understanding the circumstances relevant for the case and giving statements related thereto due to his physical or mental disabilities [disorders], such person cannot be questioned as a witness.  The age limit of the person to give statements as a witness is not established. Still, it is not recommended to question children of a young age, i.e. under the age of fourteen, as witnesses, because children of this age usually tend to fantasize, find it more difficult to distinguish between the real things and imagination, are more easily influenced by others etc.  Besides, the liability for giving false testimony is imposed only on the persons over sixteen years of age.

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 Criminal Procedure Code provides for obligation to assess all persons who have suffered from criminal offences in order to determine whether they have special protection needs and prevent them from psychological trauma, criminal influence or other negative consequences. These persons may include victims of sexual offences, trafficking in human beings, serious crimes of violence and other persons who need additional support. The statements on assessment of the needs for special protection are filled in by investigating pre-trial investigation officer or the prosecutor carrying out or monitoring the respective pre-trial investigation. It is not necessary to asses the special protection needs, if such needs of the victim have been determined in other ways, e.g. statement or conclusion of a professional, or conclusion on repeated risk assessment etc.

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?

It is established in the Criminal Procedure Code and Recommendations that in the course of pre-trial investigation an underage witness or underage victim is usually questioned in the facilities specially adapted for conducting children’s questionings and no more than once. A video and sound recording must be made during such questionings. If the court which is the work place for the pre-trial judge who has been addressed with application for questioning of an underage, does not have a specialized room enabling watching of the video and sound recording made real-time from another room and giving questions through pre-trial judge, it is necessary to ask the pre-trial judge to come to the nearest institution (e.g. regional court, police office, public organization) equipped with required facilities and conduct the questioning. Such questioning should also be assisted by a specialized psychologist who helps to question the underage considering his social and psychological development.

2.12. How is the prevention of repeated victimisation ensured?

According to the Criminal Procedure Code, where it is determined that a victim has needs for special protection, a pre-trial investigation officer or prosecutor must organize the criminal proceedings respectively, with suggesting that the victim was questioned only once and only by pre-trial judge. In cases where it is however necessary to conduct the questioning of an underage witness or underage victim once again, the questioning usually is conducted by the same person who conducted the first questioning.

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

A victim residing in the European Union Member State other than the one where the criminal offence was committed shall have the same rights as held by the persons living in that State where the crime was committed. If the victim is not able to file a report in the Member State of commission of the criminal offence, he may address a competent government authority operating in his original Member State. This report shall be forwarded to the competent government authority operating in the Member State of commission of the crime in the shortest possible time.

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?

      The rights of victims and witnesses are defined in the Criminal Procedure Code, Recommendations and Records of Questioning Witnesses (Victims) and enclosures thereto as approved by the Prosecutor General. Prosecutors, pre-trial investigation officers and courts are obliged to ensure that victims and witnesses are given the possibility to exercise the procedural rights granted to them.   

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?

According to the Criminal Procedure Code, every time when elements of a criminal offence are discovered, the prosecutor, acting within his competence, must undertake all measures established in the laws in order to investigate and disclose the criminal offence in the shortest possible time. In addition, Law on Prosecution Service provides that a prosecutor makes his decisions independently, at his own discretion, in compliance with laws and the principle of reasonableness, with respect for human rights and freedoms, the presumption of innocence, also the principle of equality of persons before the law, state institutions and officials irrespective of their social and family status, duties, occupation, convictions, views, origin, race, gender, nationality, language, religion and education. Besides, the Code of Ethics for Prosecutors of Lithuania establishes the rules of conduct and professional ethics (activity) which must be complied with by all prosecutors working in the Prosecution Service. Also, this Code regulates prosecutors’ relations during and after office hours as well as relations with the parties of the proceedings, the Lithuanian nationals and other persons.

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?

Prosecutors cooperate with state institutions and non-governmental organizations by participating in conferences, meetings, training courses, work teams and by providing with methodological or practical assistance. The controlling role is performed by prosecutors within the limits defined in the Criminal Procedure Code or laws.

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

Yes, they can do that.

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

Yes, they can do that.

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

          Prosecutors are actively involved in cooperation with state institutions and non-governmental organizations.

With the view to secure proper representation of a child in the criminal proceedings, on 27 January 2011 the Cooperation Agreement among the Prosecutor General’s Office,   Ministry of Social Security and Labour and Institution of the Ombudsman for Children Rights of the Republic of Lithuania was signed.

Prosecutors of territorial prosecutor’s offices also participate in the activities of commissions for child’s welfare which are set up by Municipal Administrations for the purpose of coordinating the implementation of education, rehabilitation, prevention and other programs in the territory of municipality, and maintaining cooperation among institutions in providing the school-level commissions for child’s welfare with methodological, informational, consultative and specialized assistance.

In addition, with the view to enforce cooperation with institutions involved in the activities related to children, victims of crimes and witnesses to crimes, prosecutors work together with Children Support Centre. In 2016 Prosecutor General’s Office and Children Support Centre undersigned the agreement on cooperation.

While implementing the project “Establishment of Support Centre for Children  Suffering Sexual Violence” under the program “Children and Youth Exposed to Risk”  implemented by the European Economic Area financial mechanism in 2009–2014,  Prosecutor General’s Office and Ministry of Social Security and Labour were actively engaged in preparation of Recommendations Regarding Provision of Complex Assistance to the Children who have Allegedly Suffered from Sexual Abuse, which were eventually approved on 14 July 2016.

       Following recommendations listed in 31 December 2012 Report No. VA-P-10-2-21 of the  National Audit Office of Lithuania on the public audit “Is child rights protection organized effectively?”, prosecutors of Prosecutor General’s Office participated in the activities of the work group set up by the Ministry of Social Security and Labour which was assigned to prepare Recommendations Regarding the Procedural Status and Functions of Specialists of Child Rights Protection Divisions in the Criminal Proceedings. These Recommendations were approved by State Child Rights Protection ad Adoption Service on 27 May 2016.

              

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?

There is Training Division operating in the Prosecutor’s Office. It assesses the training needs and organizes training where presentations are also often made by prosecutors. Prosecutors take part and make presentations in the training courses on protection of witnesses and victims’ rights and broadening the knowledge in this particular field. The training courses are also attended by officers from courts, pre-trial investigation institutions, representatives of non-governmental organizations and psychologists. After each training session the participants are asked to share their feedback. According to the information held by the Training Division, prosecutors wish to attend more training in this particular field where sessions are held by professional psychologists and specialists of communication. One of the most common problem faced by the officers is that natural persons who have suffered from or have witnessed criminal offences and who have information about the committed criminal offence not always address the law enforcement authorities with the view to defend their rights.

 

3.1                     Any other relevant point you wish to raise

To continuously increase public awareness, encouraging everybody who has become a victim of a criminal offence or has witnessed a criminal offence to always address law enforcement authorities.