funeral comments
as things currently stand, Luxembourg legislation has only a few provisions relating to the protection of witnesses and pentiti. These provisions apply in general to all criminal offences and are not specific to terrorism.
The Law of 12 August 2003 (1) on the suppression of terrorism and the financing of terrorism and (2) approving the International Convention for the Suppression of the Financing of Terrorism, opened for signature in New York on 10 January 2000, transposed into Luxembourg law, apart from the provisions of the said Convention, the Framework Decision of the Council of the European Union of 13 June 2002 on combating terrorism. In the present document that Law will be referred to as "the Law of 12 August 2003 on terrorism". It should also be noted that this Law also introduced a general definition of terrorism into Luxembourg law.
Moreover, in the light of the particular situation of victims and witnesses with regard to organised crime and terrorism, on 20 May 2003 the Government tabled Bill No. 5156 entitled "Bill strengthening the rights of victims of criminal offences and improving the protection of witnesses" aimed at reforming Luxembourg law in this domain. In the present questionnaire, this Bill, which will be referred to as the "Victims and Witnesses Bill" in the remainder of this document, will be thoroughly analysed.
In the replies to the various questions, reference will primarily be made to these two instruments.
a. General information
1. Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti.
In Luxembourg positive law, there are as yet no specific measures relating to the protection of witnesses and pentiti.
Article 282 of the Criminal Code currently provides for prison sentences and fines where witnesses have been subject to abuse or physical attack as a result of their testimony
Under Article 326 of the Criminal Code, the penalties provided for in the Chapter of the Criminal Code relating to a criminal association or organisation shall not apply to persons found guilty who, prior to any attempted crime or offence by the said association or organisation, and before any proceedings have commenced, have provided the authorities with information on the existence of such groups and the names of their leaders or subordinates.
In addition, Section 31 of the amended law of 19 February 1973 on the sale of medicinal substances and the fight against drug addiction provides that those found guilty of certain categories of drug offences shall be exempt from imprisonment or fines where they have revealed to the authorities the identity of those responsible for the offences or the fact that such offences had taken place. For certain offences, the above law makes provision for a reduction in custodial sentences or fines.
The Law of 12 August 2003 on terrorism introduced into Luxembourg law exemptions from penalties for those who, prior to any attempted offence under Sections 135-1 (act of terrorism), 135-2 (act of terrorism resulting in the death of one or more persons) and 135-5 (funding of terrorism) and before any proceedings have commenced, provide information to the authorities on plans to commit the above offences or the identity of those implicated.
Similarly, custodial sentences will be reduced in pursuance of Article 52 of the Criminal Code in line with the scale provided for with regard to those who, after proceedings have commenced, reveal to the authorities the identity of those who had hitherto remained unknown.
Under the terms of Article 135-8 of the Criminal Code, exemption from penalties are provided for those found guilty of being part of a terrorist group who, prior to any attempted terrorist act by the group, and before any proceedings have commenced, inform the authorities of the existence of the said group and the names of its leaders or subordinates.
2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witnesses and pentiti to co-operate with the justice system.
Apart from the current provisions providing exemptions from penalties, described under the reply to question 1, there are no special provisions aiming at encouraging witnesses or pentiti to collaborate with the justice system.
Can measures/benefits encouraging the co-operation of witnesses and pentiti be used in combination with protection measures (arrangements concerning trial proceedings, sentencing conditions, special penitentiary regimes, etc.)? If so, please specify and indicate the conditions under which they are applied.
The Victims and Witnesses Bill provides that under certain conditions, the courts may agree to hear a witness who is under threat or a witness or expert residing abroad, via video-conference or any other appropriate means of remote audio-visual communication, with the witness's agreement, if it is not possible or desirable for the latter to appear at the trial in person.
Under the terms of this Bill, a witness under threat is considered to be an individual in circumstances in which it may legitimately be presumed that he/she or a person of his/her circle may feel under serious threat on account of the evidence to be given, and who has indicated that he/she does not intend to testify because of that threat (the future Article 158-2 of the Code of Criminal Procedure)
For further details on the conditions under which these measures will be applied, please refer to the reply to question 11.
4. For what kind of crime and under what circumstances can witness
and pentito protection be applied? Can the measures be extended
to the relatives or other persons close to the witness/penf/fo?
The protective measures established by the Victims and Witnesses Bill, i.e. the recording of the hearing of a witness or minor, the use of videoconferencing or the removal of the accused from the courtroom, are not limited to a certain kind of crime.
At present there is no general protection scheme for pentiti; the general witness protection provisions described above also apply to relatives or other close persons when they give evidence.
5. What urgent measures (e.g. immediate relocation to a secret place)
can be taken in order to protect witnesses and pentiti?
|nder the Victims and Witnesses Bill, the recording of statements or the use video-conferencing may be ordered by the State Prosecutor at the sliminary investigation stage. The Bill does not foresee other specific sasures to be taken in case of emergency
в. What institutions are involved in the protection of witnesses and pentiti and what is their role (e.g. law enforcement agencies, special independent agencies, prosecutor's offices, judicial authorities, etc.)? How does co-operation between the relevant institutions work in practice?
Under the terms of the Victims and Witnesses Bill, the authorities required to take the measures provided for in the Bill are the State Prosecutor, the investigating judge and the trial court.
As it is just a Bill at present, there is no practical experience of how the provisions are applied.
7. Are there any specific provisions governing the protection of witnesses and pentiti in relation to acts of terrorism? If so, please specify. Are there any specialised counter-terrorism institutions? If so, what is their role in the protection of witnesses and pentiti in relation to acts of terrorism?
There are no specific measures concerning witness protection in relation to acts of terrorism. However, the offences classified as terrorist offences by the Law of 12 August 2003 satisfy the conditions specified by the Victims and Witnesses Bill, with the result that the protection measures contained therein will apply to witnesses of acts of terrorism. The agencies involved in the fight against terrorism (primarily in the police and state intelligence service) will not play a role in witness protection.
8. How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to cooperate with justice guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards.
The provisions foreseen in the Victims and Witnesses Bill have been drawn up so as to strike a balance between (i) the fight against terrorism and organised crime and (ii) respect for human rights and fundamental freedoms.
In order to ensure compatibility between the measures foreseen in the Victims and Witnesses Bill and the right to a fair trial, reference was made during the drafting of the Bill to a series of judgments delivered by the European Court of Human Rights, including the Doorson v. the Netherlands judgment of 26 March 1996 and the Van Mechelen v. the Netherlands judgment of 23 April 1997, and to Recommendation No. R (97) 13 of the Committee of Ministers to member states of the Council of Europe concerning the intimidation of witnesses and the rights of the defence.
The Victims and Witnesses Bill does not provide for the creation of specific [bodies and procedures as the current procedures of common law were [judged sufficient to assert defendant's rights.
ij. Procedural measures
[9. At what stage(s), and in what context, is it possible for witnesses and pentiti to benefit from procedural measures of protection?
fijnder the Victims and Witnesses Bill, the procedural protection measures [contained therein can be ordered at the preliminary investigation stage by [the State Prosecutor, or by the investigating judge during the investigation [stage. They can also be taken or maintained at the trial stage.
ЕЮ. Is it possible for witnesses and pentiti to obtain legal assistance at this (these) stage(s)?
Jnder the amended Legal Aid Act of 18 August 1995, legal aid shall be granted to an individual for the purposes of defending his/her interests. 5iven that a witness has no prima facie interests to defend within the leaning of the criminal proceedings, the aforementioned Act makes no provision for legal aid for witnesses. However, where an investigating judge, In the course of questioning, charges a person initially called as a witness, pie latter is immediately (and before any further steps in the case are taken) 3ntitled to legal aid.
11. Are there alternative methods of giving evidence which allow witnesses and pentiti to be given protection from intimidation resulting from face to face confrontation with the accused? If yes, please specify (e.g. full or partial anonymity, video-conference, disguise, exclusion of the defendant from the courtroom when the witness is giving evidence, exclusion of the media or the public from the trial, etc.) and indicate under what conditions these methods are used.
The Victims and Witnesses Bill seeks to introduce in the Code of Criminal Procedure a series of provisions relating to the recording of statements liven by witnesses and victims, the use of video-conferencing, the removal >f the accused from the courtroom when certain witnesses are testifying, md hearings in camera.
Vith the exception of the last two measures, which are matters solely for the «"ial courts, such steps can be taken under virtually identical conditions in both the investigation and trial stages.
a. Total or partial witness anonymity: r
It is foreseen that a separate bill will deal with the question of the total or partial anonymity of witnesses.
b. Remote questioning and hearings:
The investigating judge and the trial courts could decide to take evidence from a witness who is under threat or a witness or expert residing abroad, via video-conference or any other appropriate means of remote audio-visual communication, with the witness's agreement, if it is not possible or desirable for latter to appear at the trial in person.
It could also be decided to take evidence via a tele-conference from a witness who is under threat or a witness or expert residing abroad, with the letter's agreement, if it is not possible or desirable for the individual who is to give evidence to appear at the trial in person.
c. Distortion of the image and/or voice of the person giving
testimony:
It is foreseen that a separate bill will deal with the question of the distortion of the image and/or voice of the person giving testimony.
d. Departure of the accused from the courtroom during certain
testimonies:
The new Article 158-3 of the Code of Criminal Procedure, as foreseen by the Victims and Witnesses Bill, would enable the trial court to order the accused to exit the courtroom if there was reason to fear that a witness would not tell the truth in his/her presence or if there would be an immediate risk of serious harm for the health of the witness if the latter was heard in the presence of the accused, or if the witness was a minor and there was reason to believe that his/her well-being would be in danger if the testimony was given in the presence of the accused.
In order to avoid any objections regarding compliance with the rights of the defence, it is provided that when statements are gathered using teleconferencing, the statements cannot be considered as evidence unless they are corroborated by other evidence.
Hearings in camera:
The Victims and Witnesses Bill seeks to amend Article 190 of the Code of Criminal Procedure whereby trials are held in public, in that it proposes stipulating that where the court finds that there would be a danger to the safety of a witness if he/she testified in a public hearing, it can order the trial to be held in camera, as the danger to the safety of witnesses is considered to be a threat to public order.
12. On what grounds and on the basis of what criteria can anonymity
be granted? Is it possible to obtain legal assistance at this stage?
As regards the question of anonymity, please refer to the reply above under question 11a.
As regards the conditions for the granting of legal aid, please refer to the reply above under question 10.
13. Are pre-trial statements of witnesses and pentiti and testimonies
of anonymous witnesses and pentiti regarded as valid evidence? If
yes, under what conditions?
Under the Victims and Witnesses Bill, statements made before and during the trial that are recorded or which use video-conferencing shall be considered as evidence. However, they must be corroborated by other evidence.
14. Is it possible, and if so, under what conditions, to use information
provided by "pentiti"? How is their credibility assessed?
At present there is no legislation specific to pentiti. They will therefore be considered as witnesses to whom the general provisions relating to witnesses as well as those set out above shall apply. The question of the credibility of a witness shall be left to the discretion of the judges.
15. What are the opportunities for the defence to exercise its rights,
including the right of the accused to challenge the
witness'/penffto's credibility in criminal proceedings (including at
the pre-trial stage) and respect of the "equality of arms" principle?
The Victims and Witnesses Bill provides that an individual could not be convicted solely on the basis of statements gathered by recording or videoconferencing. The latter must be corroborated by other evidence.
)n application of customary criminal procedure, it is for the investigating judge and the trial courts to evaluate and ascertain the credibility of the witness, which may be challenged, in both procedural stages, by the accused.
с. Non-procedural measures
16. At what stage(s), and in what context, is it possible for witnesses
and pentiti to benefit from a protection programme?
Under the Victims and Witnesses Bill, the protection measures in question could be provided at the preliminary investigation stage, as well as during the investigation stage, i.e. when the matter is referred to the investigating judge, and during the trial stage in the trial court.
17. Is it possible for witnesses and pentiti to obtain legal assistance at
this (these) stage(s)?
Please refer to the reply to question 10.
18. What is the procedure for admittance to a protection programme?
Please specify, in particular, who takes the initiative, the criteria for
admittance, the assessment of the relevance of a testimony and
how admittance to the programme is formalised.
Please refer to the reply to question 11.
19. Please indicate the measures that can be adopted for the
protection of witnesses and pentiti (e.g. surveillance of the
residence, physical protection, protection of personal records,
relocation, change of identity, subsidies, assistance in job search,
relocation of a detainee to another prison or to special units).
At present, none of the specific protection measures mentioned in this question have been provided for by the Victims and Witnesses Bill.
20. At what stages of the proceedings (preliminary investigations,
during the trial, after the trial) can the protection programme come
into operation? What can the duration of a protection programme
be? What are the procedures for assessing the degree of danger
for the witnesses/pen№/ and their compliance with the obligations
of the programme? Is it possible to challenge a decision of
suspension, revocation or termination of a protection programme?
Please refer to the reply to question 16.
iternational co-operation
What measures (e.g. use of modern telecommunications means, assistance in relocating protected witnesses, exchange of information between witness protection authorities) have been adopted in the context of mutual legal assistance in order to facilitate international co-operation? How are the financial implications of international co-operation activities dealt with?
at present there are no provisions in national legislation specific to the orotection of witnesses and pentiti, there are as yet no international co-jperation measures in this field.
22. Has your country entered international (bilateral or multilateral) agreements on the protection of witnesses and pentiti? If so, please indicate what kind of provisions they include.
line Grand Duchy of Luxembourg has not yet concluded any specific [international agreements in this field.
|23. How can international co-operation in the field of the protection of witnesses and pentiti be improved?
j International co-operation in the field of witnesses and pentiti could be I improved in particular by introducing transnational protection programmes I enabling a person in danger to be relocated to another country.
|e. Statistics
[24. How many people currently benefit from witness or pentito protection measures/programmes, and for how long? How many of them are foreign nationals? If the measures/programmes can be extended to relatives and persons close to them, please indicate (and, if possible, specify the relationship with the witness/penf/to) how many people are included in this category. Please also provide figures on the different kinds of measures (procedural and non-procedural) adopted, and on the number of cases involving international co-operation.
fiew of the fact that the measures and provisions detailed in the replies to [ questionnaire are still at the Bill stage, it is not possible at present to vide any statistics in this field.
f- Proposals and comments
25. Please provide any comments/proposals concerning the implementation of the terms of reference of the PC-PW and jn particular, instruments to be adopted to strengthen the protection of witnesses and pentiti.
The Grand Duchy of Luxembourg has no particular comments or proposals to make on this matter.
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