1st Draft
08 April 2004
LAW ON WITNESS PROTECTION PROGRAMME
- Introductory Provisions
Article 1
The present Law shall regulate terms and procedures for providing protection and assistance to a witness outside criminal proceedings when reasonable fear exists that testifying for the purpose of bringing evidence about the criminal offences, which may ground the protection under the present Law, would expose the witness to severe danger to life, health, corporal inviolability, freedom or property of large scale.
For the purpose of paragraph 1 of this Article, at the request of the witness, the protection and assistance may also be provided to a person close to him or her.
Article 2
The Protection of the witness i.e. person close to him or her shall be provided through application of the Protection Programme.
The Protection Programme may be applied only with the consent of the witness i.e. person close to him or her.
The Protection Programme may be applied to a minor only with the approval of the parent or guardian. In case of persons completely or partially deprived of capacity to transact businesswith limited working ability or persons incapacitated for work, the approval shall be provided only by a person authorized for representation in accordance with the law or a guardian.
Article 3
The measures and activities undertaken on the basis of the present Law may not affect the rights of the defendant.
Article 4
Certain expressions used in the present Law shall have the following meaning:
1. Witness shall be a person to whom the Protection Programme is being applied due to a reasonable fear that testifying for the purpose of bringing evidence about the criminal offences, would expose him or her to severe danger to life, health, corporal inviolability, freedom or property of large scale.
2. Close person shall be the spouse or close relative of the witness as well as another person close to the witness who he or she designates as such, and requests to be included in the Protection Program,
3. Protected Person shall be a person, with whom the Contract on Protection Program application has been concluded,
4. Protection Unit shall be a special organisational entity within the Ministry of Interior, in charge of the application of the Protection Programme,
5. Protection Programme shall comprise measures and actions undertaken in order to protect a witness i.e. person close to him or her.
Article 5
The Protection Programme shall be applied if the evidence about the criminal offence cannot not be brought without the testimony of the witness or if bringing of such evidence in other manner would entail disproportional risk or endangering the lives of people, when the following criminal offences are being proven:
1) Crminal offences against the constitutional order or security of the Republic of Montenegro,
2) Crminal offences against humanity and other values protected by international law,
3) Crminal offences commited in an organised manner,
4) Crminal offences punishable by law to 5 or more years of imprisonment or more serious punshment.
2. The Commission
Article 6
Decisions on application, extension, termination and cessation of the Protection Programme shall be passed by the Commission for Application of the Witness Protection Programme (hereinafter referred to as “the Commission”)
The Commission shall consist of five members and they shall be as follows: a judge of the Supreme Court of the Republic of Montenegro, a representative of the Chief State Prosecutor selected from among the deputies, a representative of the Ministry of Justice, a representative of the Ministry of Interior and the Head of the Protection Unit.
Members of the Commission shall be appointed and relieved of duty by the Head of the body represented in the Commission. The head of the Protection Unit shall be a member of the Commission by virtue of the post held.
The Protection Unit shall perform such administrative tasks as may be required by the Commission.
Article 7
Members of the Commission, save for the Head of the Protection Unit, shall be appointed for a term of five years and shall be eligible for re-appointment.
Article 8
Membership in the Commission shall cease:
- upon expiration of the term the member was appointed to,
- at member’s own request,
- if office or employment on the basis of which the member was appointed has been terminated,
- due to revealing of an official secret concerning the work of the Commission,
- if, in performance of his or her official duties, the member does not abide by the regulations referring to the application of the Protection Program.
The decision on cessation of membership in the Commission shall be made by the Head of the body represented in the Commission, at a proposal of the Chairman of the Commission, and in case of the Chairman of the Commission, at a proposal of at least two members of the Commission.
Article 9
The Commission shall have a Chairman. The Chairman of the Commission shall be a representative of the Supreme Court, and in case of his or her absence, a member of the Commission designated by him or her.
The work of the Commission shall be an official secret.
The Commission shall adopt its Rules of Procedure.
Article 10
The Commission shall make decisions in sessions.
The Commission can make decisions providing that at least four members are present at the session.
A decision of the Commission shall be valid if voted for by at least four members.
3. The Protection Unit
Article 11
The Protection Unit shall undertake the measures and actions for implementation of urgent measures, apply the Protection Program and perform other tasks connected with the protection of the witness i.e. person close to him or her, unless otherwise provided by the present Law.
The Protection Unit shall be responsible for the application of the Protection Program.
The state bodies, bodies of local self-government, organisations and other entities performing public duties shall be obliged to provide assistance to the Protection Unit and, at its request, perform activities falling within their competence as may be required for the implementation of the measures referred to in the present Law.
Article 12
The Protection Unit shall provide necessary economic, psychological, social and legal assistance to the protected person.
The Protection Unit shall assist the protected person with the provision of economic and social support until the moment he or she achieves economic independence.
Economic and social support provided to the protected person may not be higher than the amount necessary to cover the costs of living and to make possible economic independence in new conditions.
Article 13
When measures as per Article 27, Paragraph 1, Items 1-4 of the present Law cannot be implemented otherwise, the Protection Unit may, while performing tasks from its competence conceal the identity of its employees as well as the property ownership over the items used in the implementation of a specific measure.
4. APPLICATION AND EXTENSION OF THE PROTECTION PROGRAM
Procedure for application of the Protection Program
Article 14
The Commission shall decide on the application of the Protection Programme at a request of the Chief State Prosecutor.
The following persons may initiate the submittal of the request for application of the Protection Programme: competent state prosecutor, judge considering a case or a witness, if a free testimony of the witness cannot be secured otherwise.
Article 15
The request for application of the Protection Programme submitted by the Chief State Prosecutor shall include the following:
- information data about a person whom the application of the Protection Programme is proposed for,
- description and legal definition of the criminal offence and evaluation of the existing evidence,
- contents of a possible testimony with the evaluation of its importance for the proceedings,
- description and assessment of a risk faced by the witness i.e. person close to him or her.
Article 16
Upon receipt of the request for application of the Protection Programme submitted by the Chief State Prosecutor, the Chairman of the Commission shall immediately, and not later than within three days, convene a session of the Commission.
The Commission shall decide on the request not later that fifteen days as of the day of the submittal of the request and shall inform immediately the Chief State Prosecutor and the Protection Unit about its decision.
Procedure for application of urgent measures
Article 17
Should the Chief State prosecutor Prosecutor asses that the life, health or corporal inviolability of the witness i.e. person close to him or her may be immediately exposed to serious danger, the Chief State Prosecutor shall, simultaneously with the submission of the request for the application of the Protection Programme, inform the Protection Unit thereon in order to apply urgent measures.
The decision on the appliaction and type of urgent measures shall be made by the Haed of the Protection Unit within 24 hours as of the receipt of the notification from the Chief State Prosecutor. The Head of the Protection Unit shall immediately inform the Chairman of the Commission and the Chief State Prosecutor about the decision.
Prior to application of urgent measures, the Head of the Protection Unit shall obtain a written consent of the witness i.e. person close to him or her.
The application of urgent measuers shall continue until such time as the Commission makes a decision on the request for appliaction of the Protection Programme.
Article 18
The measures referred to in Article 27, paragraph 1, items 1-3 of the present Law may be applied as urgent measures.
Article 19
After the decision on application and type of urgent measures has been made, the Head of the Protection Unit shall request from the witness i.e. person close to him or her to fill out the questionnaire about his or her personal data (hereinafter referred to as “the Questionnaire”), property, obligations, as well as other information and to undergo medical examinations.
The content of the Questionnaire shall be determined by the Minister of Interior.
Article 20
The Head of the Protection Unit shall submit to the Commission a copy of the filled Questionnaire, the medical report from Article 19 paragraph 1 of the present Law, as well as the opinion on application of the Protection Programme.
Contract on the Protection Program application
Article 21
Should the Commission pass the decision on the Protection Program application, it shall authorize the Head of the Protection Unit to enter into Contract on the Protection Program application with the witness, i.e. person close to him or her (hereinafter referred as: “the Contract”).
The application of the Protection Program shall commence on the day of conclusion of the Contract.
Article 22
The Contract shall have to contain:
- General information:
- parties to the Contract,
- consent of the witness i.e. person close to him or her on the Protection Program application,
- statement of the witness i.e. person close to him or her that the data from the Questionnaire are true,
- Obligations of the witness i.e. person close to him or her:
- to give the testimony in accordance with the Criminal Procedure Code and answer clearly and precisely on questions to be asked in criminal proceedings,
- to abide by instructions of the Protection Unit,
- for the purpose of protection, to agree with the conducting of surveillance and technical recording of long-distance communication means, to the surveillance and technical recording of premises in which he or she resides and to the secret covert monitoring and recording, which can be authorized without a specific court decision,
- to undertake all necessary measures for the purpose of achieving, after the application of the Protection Program has commenced, his or her economic independence until the expiration of the Contract,
- to inform the Protection Unit without delay about any change of circumstances which have an impact on the application of the Protection Program,
- Obligations towards the witness i.e. person close to him or her:
- to implement contractual protection measures with essential only necessary restrictions only of his or her rights and freedoms,
- to provide him or her with necessary psychological, social and legal assistance in the course of the Protection Program application,
- to determine the duration and range scope of the necessary economic assistance,
- Duration of the Protection Program,
- A clause that the Contract was drafted drawn up in a single copy and that it is kept with the Protection Unit,
- A clause that the provisions of the Contract are not subject to court proceedings,
- Statement of the witness i.e. person close to him or her to have understood the contents of the Contract and to have agreed upon it,
- Date of conclusion of the Contract and signature of the parties.
During the course of the Protection Program, the Contract can be accessible only by the Commission.
Article 23
A parent or a guardian shall enter into Contract on behalf of minors. In case of persons completely or partially deprived of capacity to transact businesswith limited working ability or persons incapacitated for work, the contract Contract shall be concluded by a person authorized for representation in accordance with the law or a guardian.
Procedure for extension of the Protection Program application
Article 24
Should it be determined that after the expiration of the period of the Protection Program stipulated in the Contract the protected person still requires protection, the Chief State Prosecutor shall submit the request for extension of application of Protection Program to the Commission.
The Chief State Prosecutor shall submit the request for extension of application of Protection Program not later than 15 days before the expiration of the period of the application of the Protection Program.
Persons stated referred to in Article 14, paragraph 2 of the present Law may file the initiative with the Chief State Prosecutor pertaining at to the submission of the request for extension of the application of the Protection Program.
The application of the Protection Program can may be extended only upon the approval of the protected person only.
Article 25
The request of the Chief State Prosecutor for extension of application of the Protection Program must contain the following:
- Information regarding the person the extension of application of the Protection Program is requested for,
- Date and number of the Decision on application of the Protection Program, adopted by the Commission, and
- Motivation based on which the extension of application of the Protection Program is requested.
Article 26
The Commission shall decide on the extension of application of the Protection Program within the deadlines as provided laid down for in Article 16 of the present Law.
5. TYPES OF PROTECTION MEASURES
Article 27
The measures by which the protection of persons is provided (hereinafter referred to as: protection measures) shall be as follows:
- physical and technical protection,
- relocation,
- measures of concealing identity and property,
- change of identity.
When passing the Decision decision on Application of the Protection Program, the Commission shall also determine the type of the protection measures as per Paragraph 1 of this Article, which shall be implemented regarding the protection of a witness, i.e. person close to him or her, having in mind that one or more measures shall be possible.
The Protection Unit shall implement the measures as per Paragraph 1 of this Article.
Article 28
Physical and technical protection measure shall consist of the immediate provision of protection aimed at prevention of a serious danger to life, health, corporal inviolability, freedom or property of the witness i.e. person close to him or her.
Article 29
Relocation of the witness, i.e. person close to him or her shall consist of a temporary or permanent resettling from the place of his or her residence, either permanent or temporary, to another location designated by the Protection Unit.
The measure of relocation may be carried out within the territory of Republic of Montenegro (hereinafter referred as: Republic) or on the territory of another state in accordance with a special agreement i.e. international treaty.
Article 30
The measure of concealing identity shall comprise the creation and use of personal documents and those related to the property of the witness i.e. person close to him or her, which contain temporarily changed personal data, as well as data regarding his or her property.
The measure as per paragraph 1 of this Article shall not result in actual change of personal and property data in the corresponding records.
Article 31
The change of identity shall consist of modifying parts or entire personal data of the witness i.e. person close to him or her.
The personal data that have been entered to establish new identity documents must not be taken as reference to another person’s data.
The acquisition of a new identity may have an impact on rights of a witness i.e. person close to him or her only to the extent that it is necessary for the purpose of applying the Protection Program.
Upon the expiration of this measure, the witness i.e. person close to him or her shall provide the statement on the issue of retaining the new identity. The witness i.e. person close to him or her may not be reinstated in his or her original identity if the change of identity has significantly influenced the status of another person (marriage, fatherhood or motherhood, etc.)
The original identity documents of the witness i.e. person close to him or her shall be deposited in the Protection Unit.
6. Implementation of the measures of concealing and changing of identity
Article 32
A protected person may not use the documents as per Article 30, Paragraph 1 of the present Law, without prior consent of the Protection Unit, when concluding legal transactions that might have impact on third parties, until the Protection Program is in force.
In cases when the Protection Unit has not provided its consent on concluding legal transactions as per Paragraph 1 of this Article, a protected person may, upon the consent of the Protection Unit, nominate a trustee proxy who will conclude those legal transactions on his or her behalf and real name.
Article 33
In case the measure of change of identity has been approved, the Protection Unit shall invite the protected person to fulfill his or her due obligations towards third persons.
In case the protected person fails to fulfill his or her obligations mentioned referred to in Paragraph 1 of this Article, the measure of change of identity shall not be applied until such obligations have been fulfilled.