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?

Yes, the status of victims and witnesses is defined in the law (section 65 fig 1 and section 154 para 1 CCP (Code of Criminal Procedure–Strafprozessordnung [StPO]).

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?    

Basically the CCP does not distinguish between certain categories of victims (such as victims of trafficking, domestic violence etc), but in some provisions special rights are foreseen for victims of domestic violence and sexual abuse, who are regarded as vulnerable victims in a special need (see 2.1. and 2.3.).

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 status of vulnerable persons under the understanding as victims in a special need is defined in the law, within the framework of criminal procedure. By virtue of section 66a para 1 CCP such persons are victims of sexual offences, persons exposed to domestic violence or victims under age (below the age of 18 years).

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. Please see 2.3.

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

These specific rights are established in the law, within the framework of the CCP (especially section 65 [victims], section 66a [vulnerable victims], sections 156, 157 and 158 [witnesses]).

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:

Right to participate actively in criminal proceedings (e.g. to be present at hearings or crime scene reconstruction-meetings, to pose questions, to apply for additional investigations etc.; section 10 para 1, section 66 para 1 fig 6 and 7, section 150 para 1 CCP);

Right to be treated with dignity and to be respected in their highly-personal sphere (section 10 para 3 CCP):

Right to be represented by a confidant (e.g. attorney, victims support service; section 66 para 1 fig 1 CCP);

Right to be informed about the development of the proceedings (interruption, ending, continuation or outcomming; section 66 para 1 fig 4 CCP);

Right to get access to the files (section 66 para 1 fig 2 and section 68 para 2 CCP);

Right to apply for the continuation of the proceedings (section 66 para 1 fig 8)

Right to psycho-social and legal assistance (section 66 para 2 CCP)

Right to get informed about the (temporally) release of the defendant from prison (sections 70 para 1, 172 para 4, 177 para 5 and 181a CCP)

Right to join criminal proceedings as a private party and seek restitution (section 67 CCP);

Vulnerable victims:

Right to be interrogated by a person of the same sex (section 66a para 2 fig 1 CCP);

Right to refuse the answer of particular questions in view of highly-personal details of a sexual offence (section 66a para 2 fig 2; section 158 para 1 fig 2 CCP);

Right to be interrogated in a gentle manner (behind the screen or in absence of the defendant (section 66a para 2 fig 3, section 165, section 250 para 3 CCP);

Right to refuse to give evidence again, if an adversarial interrogation has already taken place (section 156 para 1 fig 2 CCP;

Right to exclude the public from trial (section 66a para 2 fig 4 CCP);

Right to be accompanied by a confidant (section 66a para 2 fig 6 CCP);

Victims of sexual offences or domestic violence have the right to give a statement before the withdrawal from prosecution (Diversion; section 206 para 1 CCP);

Witnesses:

Right to be released from giving evidence in proceedings against a relative (section 156 para 1 fig 1 CCP);

Right to refuse to give evidence in danger of self-incrimination or incrimination of a relative or if the witness would have to disclose knowledge originating from his function as attorney, psychologist, media proprietor etc.; section 157 para 1 fig 1-4 CCP);

Right to refuse the answer of particular questions in view of the their highly-personal sphere or the danger of disgrace or immediate and significant pecuniary disadvantage (section 158 para 1 fig 1 and 3 CCP);

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.?

The police, prosecution services and courts are obliged to inform victims about their specific rights already at the beginning of the preliminary proceedings, at the latest on the occasion of their interrogation (section 10 para 2; section 70 para 1 and section 153 para 2 CCP). These informations are also to be provided in a case of a withdrawal from prosecution (diversion; section 206 para 1 CCP)

Beside that these informations are also provided by a significant number of support services, which are organised as NGOs.

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

During the preliminary proceedings victims only can use a general remedy, foreseen to claim alleged violation of rights by the public prosecution service (section 106 CCP). But this only can lead to a demonstrative court decision, stating that a violation of rights occurred, which obliges the public prosecutor to establish a status in conformity with the law.

In the trial phase the statement of a witness is invalid, if a witness was not informed about its right to refuse to give evidence or if a witness did not explicitly abandon its right to be released from giving evidence (section 159 para 3 CCP).

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?

By virtue of section 66a para 2 CCP special rights are foreseen for victims under age (section 66a para 1 fig 3; e.g. the right to give a statement in presence of a confidant, the right to be interrogated without the immediate presence of the defendant [video transmission], the right to exclude the public from trial). Victims under the age of 14 also have the right to psycho-social and legal victim assistance (section 66 para 2 CCP)

Mentally aggrieved witnesses and witnesses under the age of 14 should give a statement only in presence of a confidant (section 160 para 3 CCP).

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)?

An information about relevant decisions of the prosecution service or of the court in criminal matters is only foreseen for the victim itself (e.g. decisions about the interruption, ending, continuation or outcomming of the proceedings and about the [temporally] release of the defendant from prison [sections 194 para 1, 197 para 3, 70 para 1, 172 para 4, 177 para 5 and 181a CCP]). Other bodies dealing with the right of these persons are not informed automatically.

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 persons can give testimony alone; but they have the right to bring in a confidant (section 66a para 2 fit 6 CCP).

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

By virtue of section 156 para 1 CCP vulnerable victims (section 66a CCP) are released from giving evidence, if all parties had the possibility to take part in an adversarial interrogation (by using technical equipment for video and audio transmission) during the preliminary phase. Further rights to refuse testimony only in regard of age or mental disability do not exist.

However it is inadmissible to interrogate a person as a witness, who is – due to mental disability or for other reasons – incapable to tell the truth (section 155 para 1 fig 4 CCP).

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 status of vulnerable victims is defined by law (section 66a CCP). These victims have the right to be evaluated as soon as possible (para 1 leg. cit.); such an evaluation has to be carried out by the police as well as the prosecution service and the court.

A person, who asserts the rights as a vulnerable victim without success, has the right to get informed about the reasons for this refusal (section 66a para 4 CCP).

During the preliminary proceedings these persons can apply a general remedy addressed to the court to claim an alleged violation of rights by the police or the public prosecution service (section 106 CCP; see 2.5.).

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?

Yes. In trial as well as during the preliminary procedure vulnerable victims, witnesses under age and witnesses, who have to give testimony against certain relatives can be interrogated behind a screen, using technical equipment for audio and video transmission or recording (section 165 CCP).

This procedure is mandatory in case of an interrogation of a person under age, who is a victim of a sexual offence. For other witnesses this procedure could occur upon request or by order of the court.

2.12    How is the prevention of repeated victimisation ensured?

During the preliminary proceedings the danger of recurrence may be a reason for detaining the suspect in custody (section 173 para 2 lit 3 CCP).

The danger of recurrence respectively the danger of commiting further crimes has also to be taken into consideration for the court´s decision about a conditional sentence, conditional preventive measures or a conditional release from prison (section 43, section 43a, section 45, section 46 CC [Criminal Code]).

To prevent repeated victimisation, victims – in some cases upon prior request – have to be informed immediately, if the perpetrator is (temporarily) released from custody/prison or if he escaped (section 70 para 1, section 172 para 4, section 177 para 5 and section 181a CCP).

In cases of domestic violence, the police can enact a barring order, which is valid for two weeks (section 38a Security Police Act [Sicherheitspolizeigesetz-SPG]); for a long-term-protection the endangered person may apply at court for a temporary injunction/restraining order (sections 382b and 382e Act on Enforcement Procedures [Exekutionsordnung-EO]).

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

The Austrian CCP does not distinguish between Austrian citizens (respectively citizens of the EU) and foreigners.

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?

By virtue of section 10 para 2 CCP the Police, as well as the public prosecutors and the court are always obliged to pay attention to the rights, interests and special needs of victims adequately (see also sections 70 para 1, 153 para 2 and 206 para 1 CCP).

During the preliminary proceedings victims, witnesses and vulnerable victims (as well as any other person) can use a general remedy to claim an alleged violation of rights by the public prosecution service or the police (section 106 CCP; see 2.5.). In case of a violation of these rights by a decision of the court, these persons may file a complaint (section 87 CCP).

If a victim joins criminal proceedings as a private party (section 67 para 1 and 2 CCP), it can use all remedies provided for them during the preliminary proceedings as well as in trial.

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 3.1.

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?

Public prosecutors usually follow their legal obligations (see 3.1).

As public prosecutors lead the investigations (preliminary proceedings; section 20 para 1 CCP) they naturally have to cooperate with the police. In this respect public prosecutors do also carry out supervisory or monitoring functions.

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

Because of the – above mentioned – leading role of prosecutors in the pretrial phase these persons may also apply directly to the public prosecutor during the preliminary proceedings.

In case of an alleged violation of their rights, these persons have to apply to the court by using the mentioned remedies provided by the CCP.

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

Yes. Public prosecutors can make applications to the court with regard to these rights, e.g. for an interrogation behind the screen or in absence of the defendant (section 165 para 2, section 250 CCP) or for the exclusion of the public from trial (section 229 CCP).

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

In practice public prosecutors keep a close and regular contact with all kind of victim support services. This includes contact in specific cases (e.g. in cases of a withdrawal from prosecution after a victim-offender-mediation [section 204 CCP]) as well as on the basis of regular meetings and round tables.

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?

In cooperation with victim support organisation training courses, seminars and other events on this topic are offered regularly as part of the basic education of judges and prosecutors as well as part of their continued education.

During the phase of their basic education judges and prosecutors mandatorily have to absolve an internship of several weeks at a victim support organisation.

3.8      Any other relevant point you wish to raise.

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