Report No. 198

(h) 6.9 Portugal:

6.9.1 The Portugese legislation (Act No.93/99 of 14 th July, 1999) deals with the provisions governing the enforcement of measures on the "protection of witnesses" in criminal proceedings where their lives physical or mental integrity, freedom of property are in danger due to their contribution to the collection of evidence of the facts which are subject to investigation.

Chapters II and III deal with grounds of anonymity, video-link etc. in Court proceedings. Chapter IV deals with Witness Protection Programme. We shall here refer to the provisions of Chapters II and III.

Chapter II of the Act provides provisions for concealment of witness's image and use of teleconferences. In order to avoid witness's recognition, section 4 provides that the court may decide that the testimony or the statement of a witness shall be taken by means of either concealing the witness's image or distorting his voice or both. In case of offer of evidence relating to a crime is to be judged by a three judge court or by a jury court and whenever there are serious grounds to believe that the protection is necessary, the use of teleconference is admissible.

It can include the resort to distortion either of image or voice or both. Here teleconference means any testimony or statement taken in the witnesses physical absence by using technical means of transmission, at long distance and in actual time, either of sound or animated images. The use of teleconference is decided either upon request of the public prosecutor, or upon the defendant's or the witness's demand.

According to section 7, the long distance testimony or statement is to be taken in a public building, whenever possible in the courts, or in the police or prison premises which offer the appropriate conditions to the installation of the necessary technical devices. The access to such place, where the testimony is to be taken, may be restricted. The technical staff involved in the teleconference is required to render a commitment not to disclose the location or the witness's identification feature.

The Judge presiding to the act shall make sure the presence of another Judge at the location where the testimony or statement is to be taken. It shall be incumbent to such judge who is present at the location to do following things:-

(a) to identify and take the oath to the witness whose identity is to remain unrevealed or whose recognition is to be avoided;

(b) to receive the commitment from the technical staff;

(c) to ensure that the witness will make a free and spontaneous testimony or statement;

(d) to provide for the clear understanding of the questions by the witness and for the transmission of the answer in actual time;

(e) to act as interlocutor of the Judge presiding to the act by calling his attention to any incident occurring, during the testimony or statement;

(f) to guarantee the authenticity and the integrity of the video recording to be enclosed to the proceedings; and

(g) to take all preventive, disciplinary and restraining measures legally admissible, which prove adequate to enforce the access restrictions to the location and, in general, to guaranty the security of all persons present.

As per section 12, if during the testimony or the statement, any recognition of persons, documents or objects becomes necessary, the witness shall be allowed the respective visualization.

Under section 13, where the witness's identity is to remain unrevealed, the Judge presiding to the act shall avoid asking any question which is likely to induce the witness to the indirect disclosure of his identity.

Section 14 provides that where the witness's image and voice are concealed, the access to the undistorted sound and image shall be allowed exclusively to the Judge presiding to the act or the court through the technical means available. It is also provided that the autonomous and direct communication between both the judges presiding to the act and the escorting magistrate, as well as between the defendant and his counsel, shall be guaranteed in any circumstances.

Section 15 states that the testimony and the statements made through teleconference according to this Act and to any other relevant legislation, are deemed, for all purposes, as having been made in the presence of the Judge or of the court.

Chapter III of the Act (sections 16 to 19) deal with restriction regarding the disclosure of the witness's identification features.

Under section 17 the non-disclosure of the witness's identification is to be decided by the Examining Magistrate upon the request of the public prosecutor. The request should contain the grounds for the non disclosure as well as the reference to the evidence that must be offered thereto. The Examining Magistrate's decision on a request for non disclosure of identity "impeaches" (i.e. precludes) him to intervene in the proceeding thereafter. The non disclosure of the witness's identity as per section 16 may cover one or all the phases of the proceedings. The conditions precedent for the order of non disclosure are as follows:-

(a) the testimony or the statement should relates to criminal offences mentioned in para (a) of section 16;

(b) the witness, his relatives or the persons in close contact with him should face a serious danger or attempt against their lives, physical integrity, freedom or property of a considerable high value;

(c) the witness's credibility is beyond reasonable doubt;

(d) the testimony or the statement constitutes a relevant probative contribution.

As per section 18, for the purposes of decision on a request for nondisclosure of identity, a supplementary proceeding of a confidential and urgent nature shall be separately prepared. Only the Examining Magistrate and whoever to whom he appoints shall have access to such proceedings. The Examining Magistrate shall ask the Bar to appoint a lawyer with the proper profile to represent the defence's interests. The appointed lawyer shall only intervene in the supplementary proceeding. The witness to whom the measure of non-disclosure of identity has been granted, may make his testimony or statement either by concealing his image or by distorting his voice or through teleconference.

However, under section 19, no conviction shall be based only on the basis of the testimony or evidence of the protected witness.

(i) 6.10 Judgments of the "International Criminal Tribunal for former Yugoslavia" (ICTY) in 'Tadic' and 'Delaic' and other cases and anonymity to prosecution and defence witnesses, video-link etc: