Report No. 198
The Portuguese legislation (Act No. 93/99 of 14th July, 1999) deals with the provisions governing the enforcement of measures on the "protection of witnesses" in criminal proceedings where their lives or physical or mental integrity, freedom or property are in danger due to their contribution to the collection of evidence of the facts which are subject to investigation. These measures may also cover the witness's relatives and other persons in close contact with them.
The Act also provides for measures for collection of testimonies or statements of persons who, by reason of age or otherwise, are vulnerable persons even if the dangers mentioned above do not apply. As per section 1, as the measures laid down in the Act are extraordinary in nature, they do not apply unless deemed necessary and adequate in the case. The cross examination allowing a fair balance between the needs for combating crime and right to defence is guaranteed under the Act.
Chapters II and III deal with grant of anonymity, video-link etc. in Court proceedings, already referred to in Chapter VI of this Consultation Paper, Chapter IV deals with Witness Protection Programme.
Chapter IV of the Portuguese Act (sections 20 to 25) makes provisions for security and special measures and programmes. Section 20 provides that where significant grounds for security so justify and where the criminal offences requires the intervention of a three judge court or of a jury court, the witness may also get benefit from sporadic measures of security, namely
(a) mention in the proceeding of an address different from the one he uses or which does not coincide with the domicile location provided by the civil law;
(b) being granted a transportation in a State vehicle for purposes of intervention in the procedural act;
(c) being granted a room, eventually put under surveillance and security located in the court or the police premises;
(d) benefiting from police protection extended to his relatives or other persons in close contact with him;
(e) benefiting from inmate regimen which allow him to remain isolated from others and to be transported in a separate vehicle.
As per section 21, any witness or his wife or her husband, ancestors, descendants, brothers and sisters or any other person in close contact with him, may also get benefit from a special programme of security during the running of the proceeding or even after its closure. The conditions precedents for getting benefit of this programme are:-
(a) the testimony or statement concern the criminal offences which are laid down in section 16.
(b) There is serious danger of their lives, physical integrity or freedom; and
(c) The testimony or the statement constitutes a contribution which is deemed, or has proved to be, essential to the ascertainment of the truth.
The content of such special programme of security may contain following measures:-
(a) delivery of documents officially issued;
(b) changes in the physiognomy or the body of the beneficiary;
(c) granting of a new place to live in the country or abroad, for a period to be determined;
(d) free transportation of the beneficiary, his close relatives and the respective property, to the new place of living;
(e) implementation of conditions for the obtaining of means of maintenance;
(f) granting of a survival allowance for a specific period of time.
For the purpose of implementation of such a special programme of security, a Commission under the direct supervision of the Minister of Justice has been established.
In chapter V of the Act, provisions are made for specially "vulnerable witnesses". The witness's special vulnerability may be caused by his being too young or too old, because of his health condition or by the fact that he has to make a testimony or a statement against a person of his own family, or against a restricted social group to which he belongs in a condition of subordination or dependence. Where a specially vulnerable witness is to take part in a specific procedural act, the relevant judicial authority is required to make all efforts to ensure that, such procedural act be held in the best conditions possible in order to seek the spontaneity and the sincerity of the answers.
As per section 27, the judicial authority shall appoint a social welfare officer or any other person to accompany the vulnerable witness, and, if necessary, it shall designate an expert to give the witness psychological support to the witness. The judicial authority presiding to the procedural act may authorise the social welfare officer to stand by the witness during the said procedural act.