Including the right of the accused to challenge the

'• witness'/penf/to's credibility in criminal proceedings (including at

the pre-trial stage) and the respect of the "equality of arms"

principle?

The criminal procedure laws provide ample opportunities for the defence. '■:

For example, a suspect is entitled in particular to offer explanations and to testify as regards suspicions against him/her or to refuse to provide any explanations or testify; to present evidence; to make applications or objections; to file complaints against action (or inaction) and decisions taken by the court, prosecutor, investigator or the inquiry officer; to defend him/herself by other means and methods consistent with the CCP.

The accused is entitled in particular to defend his/her rights and legitimate interests and have sufficient time and conditions to prepare his/her defence, to present evidence; to make applications or objections; to see all the criminal case materials after the preliminary investigation has been completed and to take written notes of any information from his/her criminal case file, whatever its length; to file complaints against action (or inaction) and decisions by the investigator, inquiry officer, prosecutor or the court and to take part in the trial of his/her case by the court.

As soon as the attorney for the defence is allowed to take part in criminal case proceedings, he/she is entitled in particular to collect and present the evidence necessary to render legal assistance in accordance with the procedure set forth in paragraph 3 of Article 86 ("Collection of Evidence") of the Code; to see the detention writ, the decision concerning his/her pre-trial conditions, the records of investigation activities carried out with participation of the suspect or accused and other instruments that have been or should have been presented to the suspect or accused; to see all criminal case

iterials after the preliminary investigation has been completed, to гаке ijtten notes of any information from the criminal case file, whatever its fngth, to make, at his/her own expense, copies of criminal case materials eluding copies made with the use of technical means; to make applications r objections; to file complaints against action (or inaction) and decisions iade by the investigator, the inquiry officer, prosecutor, or the court and to ike part in the trial of his/her case by the court; and to use other defence leans and remedies consistent with the Code.

\iote: this answer refers only to those rights of the suspect, the accused or ttorney for the defence that may relate to evidence. That is why such jndamental rights as the right of the suspect or the accused to demand to anticipate in the hearings of his/her attorney or an interpreter, etc., are not lentioned.)

f. International co-operation

he Meeting of the Plenipotentiary Representatives and Experts from the Commonwealth of Independent States member countries (Minsk, April 2001) eached consensus on the text of the draft agreement on protection of the jarties in criminal proceedings and recommended that it be submitted to the Council of Ministers of Foreign Affairs and the Council of Heads of State of the Commonwealth for consideration.

Spain

General information

Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti.

.Spanish legislation regulates the protection of witnesses and pentiti under Implementing Act 19/1994 of 23 December 1994 on the Protection of

..Witnesses and Experts in Criminal Proceedings, published in the Spanish Official Gazette of 24 December 1994. The explanatory memorandum to this Act acknowledges that its main purpose is to ensure the effective protection of

: witnesses and experts, allowed by the European Court of Human Rights and United Nations Security Council Resolution 827/1993, of 25 May 1993.

2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witness and pentito to co-operate with the justice system.

In view of the foregoing, solely the desire of the person in question to co­operate or his/her genuine repentance may be taken into account. At present, courts can take a number of protection measures (hearings in separate rooms,

| voice distortion, sittings in camera, etc.), but these apply only during the

| proceedings or before the investigating judge.

There is no common practice, as each district can deal with these aspects in its I own way.

[3. 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 under which conditions they are applied.

{•Spanish legislation also regulates measures intended to encourage witnesses [and pentiti to assist in the administration of justice. In particular, Article 21 of the [Spanish Criminal Code of 23 November 1995 provides that "circumstances j mitigating criminal responsibility shall include: 4) The fact that an offender [admitted the offence to the authorities before being notified of the bringing of (judicial proceedings against him/her; 5) The fact that an offender has taken [Steps to repair the damage caused to the victim, or to reduce its impact, at any [time during the proceedings prior to the hearing".

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?

Under Section 1 of Implementing Act 19/1994, the protection measures prescribed by Spanish law may be ordered "for those involved in criminal proceedings as witnesses or experts"; this provision stipulates that "in order for protection measures to be applicable, the judicial authorities must rationally find a serious danger to the person, freedom or property of the individual desiring such protection, his/her spouse or the person to whom he/she is bound by an analogous emotional relationship, or his/her ascendants, descendants or brothers or sisters". Protection measures may thus be ordered for any offence provided that the aforementioned serious danger is found, and adopted not only in respect of the witness, but also of his/her spouse or the person to whom he/she is bound by an analogous emotional relationship, and of his/her ascendants, descendants, brothers or sisters.

5. What urgent measures (e.g. immediate relocation to a secret place)
can be taken in order to protect witnesses and pentiti?

Where there is a serious danger as described in Section 1.2 of Implementing Act 19/1994, police protection for witnesses may be ordered at the request of the prosecuting authorities; in exceptional cases, witnesses may be given new identity papers and financial assistance to change their place of residence or work. Witnesses and experts may ask to be driven to court premises, places where they are to complete any procedural formalities or their homes in official vehicles; while on court premises, they are to be provided with a properly supervised area for their exclusive use, all without prejudice to other protection measures of a procedural nature. These measures may also be adopted once the criminal proceedings are over, should the serious danger in question continue.

6. 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?

The institutions involved in adopting the protection measures discussed are members of the security forces and corps, the prosecuting authorities and the judicial authorities. Procedural protection measures are ordered by the investigating judge or committal judge, either ex officio or at the request of one party; other protection measures are requested by the prosecuting authorities, who will ask for police co-operation if need be. This system and co-operation between the institutions involved work extremely well in practice.

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?

Implementing Act 19/1994 may be applied in respect of any offence, without any specific measures in relation to acts of terrorism.

8. How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co-operate with the judicial authorities guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards.

As the explanatory memorandum to Implementing Act 19/1994 states, this Act is based on the case-law of the European Court of Human Rights; Section 4 of Implementing Act 19/1994 expressly provides that protection measures, where necessary, are to be adopted "after weighing the constitutionally protected iterests, conflicting fundamental rights and attendant circumstances of the vitnesses and experts in relation to the criminal proceedings in question". The principle of proportionality is thereby safeguarded. The Act also provides that the measures adopted shall be subject to appeal before the same court" and hat "without prejudice to the foregoing, should any of the parties make a easoned request in its provisional charge sheet, indictment or written defence pleadings for disclosure of the identities of proposed witnesses or experts whose statements or reports are considered relevant, the judge or court to hear he case must, in the very order declaring the relevance of the proposed evidence, state the first names and surnames of the witnesses and experts, while respecting the other guarantees secured to the latter under this Act". The Act also allows any of the parties to propose fresh evidence intended to substantiate any fact that might affect the probative value of the witnesses' testimony, thereby ensuring respect for the rights of the defence. Lastly, the adversarial principle and the principle of equality of arms are respected, since the Act provides that "the statements or reports of witnesses and experts who have been subject to protection in application of this Act during the investigation may have evidential value, for the purposes of the judgment, only if they are authenticated during the trial, in the form prescribed by the Criminal Procedure Act, by those who gave them", that is, publicly and in the presence of all the parties. The Act also states that, "should they be considered impossible to reproduce (...) they must be authenticated on the basis of a literal reading so that they can be contested by the parties"

b. 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?

Under Spanish legislation, protection measures may be adopted at anv stage in criminal proceedings or once the proceedings are over, insofar as the serious danger is substantiated.

10. Can witnesses and pentiti obtain legal assistance at this (thesel
stage(s)? '

Legal aid is provided to anyone considered to be an accused person or a defendant, and an interpreter is appointed if the witness does not understand or speak Spanish (Sections 384 and 440 of the Criminal Procedure Act).

_;( 11. Are there alternative methods of giving evidence which allow the protection of witnesses and pentiti 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 which conditions these methods are used.

The measures established by Spanish legislation in order to ensure witnesses' privacy are as follows:

a) Procedural documents shall not contain their first name, surname,
address, workplace or occupation, or any other details that might serve
to identify them; a number or any other code may be used for this
purpose.

b) Any method of making normal visual identification impossible shall be
used during appearances to complete any procedural formalities.

c) For the purposes of summonses and services, witnesses' addresses
shall be set down as the seat of the court concerned, which shall forward
such documents discreetly to the addressee.

Section 2 of Implementing Act 19/1994 provides that all of these measured shall be adopted "without prejudice to adversarial action assisting the

accused's defence". ~

-•#

12. On what grounds and on the basis of which criteria can anonymity be granted? Is there the possibility to obtain legal assistance at this stage?

The investigating judge may order anonymity, stating reasons, either ex

ficio or at the request of one party, where he/she deems it necessary in of the degree of risk or danger; this includes the necessary measures.safeguard the identities, addresses, occupations and workplaces of

lesses and experts, if a serious risk to the person, freedom or property of

зе wishing to be protected by such measures is found.

Are pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti regarded as valid evidence? If yes, under which conditions?

I As far as the value of witnesses' testimonies is concerned, Section 4.5 of Implementing Act 19/94 provides that "the statements or reports of witnesses

i and experts who have been subject to protection in application of this Act during the investigation may have evidential value, for the purposes of the

[judgment, only if they are authenticated during the hearing, in the form prescribed by the Criminal Procedure Act, by those who gave them", that is, publicly and in the presence of all the parties. The Act then states that, "should

| they be considered impossible to reproduce (...) they must be authenticated on

; the basis of a literal reading so that they can be contested by the parties".

14. Is it possible and, if so, under which conditions to use information
provided by pentiti? How is their credibility assessed?

[ The same Section of the Act provides that testimony shall be subject to the | adversarial principle, without prejudice to the rights of the defence or the rights of the parties to propose other types of evidence.

15. What opportunities are there for the exercise of the rights of the
defence, including the right of the accused to challenge the
witness'/penf/to's credibility in criminal proceedings (including at
the pre-trial stage) and the respect of the "equality of arms"
principle?

The rights of the defence and the right to equality of arms are guaranteed at all stages of the proceedings; if protection measures are ordered during the investigation stage, reasons must be given; such measures are adopted, where necessary, "without prejudice to adversarial action assisting the accused's defence" (Section 2 of Implementing Act 19/1994). In addition, during the indictment stage, provision is made for the competent court to rule, stating reasons, on the need to continue, adopt or modify measures ordered "after weighing the constitutionally protected interests, conflicting fundamental rights and attendant circumstances of the witnesses and experts in relation to the criminal proceedings in question", subject to appeal before the same court, all without prejudice to what is said earlier about ensuring the adversarial principle and the rights of the defence in respect of the probative value of the statements given.

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?

Section 3 of Act 19/1994 allows non-procedural protection measures to be ordered during the course of the proceedings or once they are over.

17. Are witnesses and pentiti able to obtain legal assistance at this
(these) stage(s)?

Accused persons and defendants are entitled to legal aid during the proceedings, without prejudice to the right enabling every citizen to request advisory services from the bar association, particularly where an application is made for free legal aid (Section 22 of Act 1/1996, of 10 January 1996, on Free Legal Aid).

, 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.

The basis for non-procedural protection is the existence of a "serious danger to the person, freedom or property of the individual desiring such protection, his/her spouse or the person to whom he/she is bound by an analogous emotional relationship, or his/her ascendants, descendants or brothers or sisters".

19. Please indicate the measures that can be adopted for the protection of witnesses and pentiti (e.g. surveillance of their residence, physical protection, protection of personal records, relocation, change of identity, subsidies, assistance with a job search, relocation of a detainee to another prison or to special units).

As specific protection measures, the law states that "new identity papers and financial assistance to change his/her place of residence or workplace may be provided". Witnesses and experts "may ask to be driven to court premises, places where any procedural formalities are to be completed or their homes in official vehicles; while on court premises, they shall be given a properly supervised area for their exclusive use" (Section 3.2 of Implementing Act 19/1994). In addition, "members of the security forces and corps, the prosecuting authorities and the judicial authorities shall endeavour to prevent photos being taken of the witnesses and experts, or their images being captured by any other means; anyone breaching this prohibition shall have their photographic, film, video or any other type of equipment confiscated. This equipment shall be returned to its owner once it has been

srrnined that there is no trace of any shots in which the witnesses or jerts appear in such a way that they may be identified" (Section 3.1).

At what stages in proceedings (pre-trial investigation, during the trial, after the trial) can a protection programme be granted? What is the protection programme's duration? What are the procedures for assessing the degree of danger for the witnesses/penf/f/ and their compliance with the programme obligations? Is to possible to 'challenge a decision to suspend, revoke or terminate a protection programme?

Гтпе measures described above may be ordered at any point in the criminal proceedings and last for as long as the danger warranting them exists; as the explanatory memorandum to the Act states, "the system put in place requires the judge or court to make a rational assessment of the degree of risk of danger (...) measures which, within the framework of the law, are subject to appeal."

d. International co-operation

I 21. What measures (e.g. use of modern telecommunications technology, 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?

the international level, Spain is a signatory to the European Union Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between member states of the European Union.

22. Has your country entered international (bilateral or multilateral) agreements on the protection of witnesses and pentitn If so, please indicate what kind of provisions they include.

23. How can international co-operation in the field of the protection of witnesses and pentiti be improved?

e. Statistics

24. How many people currently benefit from witness or pentito protection measures/programmes and for how long? How many of them are foreigners? If the measures/programmes can be extended to relatives and other close persons, please indicate how many people are included in this category (and, if possible, specify the relationship with the witness/penf/to). Please also provide figures on the different kinds of measures (procedural and non-procedural) adopted and on the number of cases involving international co­operation.

f- Proposals and comments

25. Please provide any comments/proposals concerning the implementation of the terms of reference of the PC-PW and, in particular, instruments to be adopted to strengthen the protection of witnesses and pentiti.

---

Дата добавления: 2015-10-16