Print   

Law on the Protection of Witnesses under Threat and Vulnerable Witnesses of Bosnia and Herzegovina

March 2003

(excerpts)

CHAPTER I

GENERAL PROVISIONS

Article 1

Purpose

This Law regulates the measures to provide for the protection of witnesses under threat and vulnerable witnesses in criminal proceedings conducted by the Court of Bosnia and Herzegovina (hereinafter: the Court) or the Chief Prosecutor of Bosnia and Herzegovina (hereinafter: the Prosecutor) in criminal offences over which the Court has jurisdiction.

(…)

CHAPTER II

WITNESS PROTECTION MEASURES

(…)

Article 10

Removal of the accused

(1) Where there is a justified fear that the presence of the accused will affect the ability of the witness to testify fully and correctly, the Court may, either ex officio or upon the motion of the parties or the defense attorney, and after hearing the other party and the defense attorney, order that the accused be removed from the courtroom.

(2) The accused shall be enabled to follow the testimony through technical means for transferring image and sound, or the testimony shall be recorded and presented to the accused.

(3) The defense attorney shall be present at the hearing. After the testimony has been presented to the accused but before the witness is released, the defense attorney and the accused shall have the opportunity to consult.

(4) A decision pursuant to paragraph 1 of this Article is subject to appeal by the parties and the defense attorney. The Panel of the Appellate Division shall consider the appeal within 72 hours following the day the appeal is received.

(…)

Article 13

Additional measures to provide for the anonymity of a witness

(1) In exceptional circumstances, where there is a justified fear that if some or all of the personal details of the witness are released it would seriously endanger the personal security of a witness or his family, and the danger would persist after the testimony is given, the Court may, either ex officio or upon the motion of the parties or the defense attorney, decide that the personal details of the witness shall remain confidential for such period as may be determined to be necessary, but in any event not exceeding thirty years, following upon the day the decision became final.

(2) The Court may, after hearing the parties and the defense attorney, decide that the anonymity of the witness be preserved by allowing the witness to testify behind a screen or utilizing electronic distortion of the voice of the witness or the image of the witness, or both the image and the voice, by using technical means for transferring image and sound.

(3) The Court may, at any time, revoke the decision from paragraph 1 of this Article, either ex officio or upon the motion of the parties or the defense attorney.

Article 14

Witness protection hearing

In exceptional circumstances, where there is a manifest risk to the personal security of a witness or the family of the witness, and the risk is so severe that there are justified reasons to believe that the risk is unlikely to be mitigated after the testimony is given, or is likely to be aggravated by the testimony, the Court may conduct a witness protection hearing in accordance with Articles 15 through 23 of this Law.

Article 15

Motion for a witness protection hearing

(1) A motion for a witness protection hearing may be made by:

a) a judge, the Presiding Judge or the judge of the Panel;

b) the Prosecutor; or

c) the suspect or the accused or his defense attorney.

(2) The motion must comprise:

a) information establishing the identity of the witness and the proceedings in which the witness is to testify;

b) facts indicating that the personal security of the witness or the family of the witness is at risk through his participation in the proceedings; and

c) circumstances about which the witness is to be examined.

(3) If the motion is made by the Prosecutor or the suspect or the accused or his defense attorney, the motion must be submitted to the Court in a sealed envelope clearly indicating on its outside that it is a motion for witness protection hearing under Articles 14 through 23 of this Law.

Article 16

Determination of the need for hearing

(1) On receipt of the motion for a witness protection hearing, the Panel of three judges shall, without delay and not later than within 15 days following the day the motion is received, determine whether such a hearing is justified.

(2) The Court shall base its determination on:

a) the facts in the motion for hearing of a protected witness; and

b) the documentation before it of the criminal case.

Article 17

Appeal against the decision of the Panel

(1) An appeal against a decision pursuant to Article 16 of this Law shall be allowed.

(2) The Panel of the Appellate Division shall consider the appeal referred to in paragraph 1 of this Article without delay and shall deliver its decision no more than 15 days from the day the appeal is received.

(…)

Article 20

Record

(1) The record of the witness protection hearing shall not contain information relating to the identity of the protected witness.

(2) The record shall employ a pseudonym for the witness, as determined by the Panel, which shall be used during the criminal proceedings and in the decisions of the Court.

(3) The members of the Panel and the minute taker of the Panel shall sign the record of the witness protection hearing.

(4) The Court shall take measures to ensure the confidentiality of the record by:

a) keeping the record separate from all other documentation of the criminal case in a secure place;

b) returning the record to the secure place after its use at the appropriate hearing in the criminal procedure and when the decision has become final; and

c) providing for long-term archiving of the record in a manner that limits access to the document only to the President of the Criminal Division for such period as may be determined to be necessary, but in any event not exceeding thirty years, following upon the day the decision became final.