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Law on Witness Protection Programme 2004

1st Draft

08 April 2004

LAW ON WITNESS PROTECTION PROGRAMME

1. 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:
1. upon expiration of the term the member was appointed to,
2. at member’s own request,
3. if office or employment on the basis of which the member was appointed has been terminated,
4. due to revealing of an official secret concerning the work of the Commission,
5. 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:
1. information data about a person whom the application of the Protection
Programme is proposed for,
2. description and legal definition of the criminal offence and evaluation of the existing evidence,
3. contents of a possible testimony with the evaluation of its importance for the proceedings,
4. 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:
1. 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,
2. 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,
3. 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,
4. Duration of the Protection Program,

5. A clause that the Contract was drafted drawn up in a single copy and that it is kept with the Protection Unit,

6. A clause that the provisions of the Contract are not subject to court proceedings,
7. 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,
8. 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:
1. Information regarding the person the extension of application of the Protection
Program is requested for,
2. Date and number of the Decision on application of the Protection Program, adopted by the Commission, and
3. 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:
1. physical and technical protection,
2. relocation,
3. measures of concealing identity and property,
4. 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.

Article 34
The Protection Unit shall provide personal documents with new identity required for a protected person and take care about entering of new data within the corresponding records.
Upon the request of the Protection Unit and based on data provided by it, the competent bodies shall issue new identity documents required for a protected person immediately, or within 15 days at the latest.

In case the competent bodies for issuance of documents and keeping of other records find out that changes of data in the records would be contrary to the protection of public interest, they shall inform the Protection Unit thereon, which shall forward this data to the Commission.

Article 35
All contacts of a protected person pertaining to his status and other rights and obligations shall be conducted with his or her consent and, if necessary, with the mediation of the Protection Unit.
Article 36

For the purpose of fulfilling rights and obligations, which did not cease after the change of identity, the protected person may nominate a trustee proxy to represent him or her.

If, after the identity has been changed, the Protection Unit learns about an obligation which emerged before, at the time the protected person still had his or her original identity and had no knowledge about the obligation, the Protection Unit shall invite the protected person to fulfill his or her obligation with the mediation of the Protection Unit. In case the protected person cannot or does not want to fulfill his or her obligation, the Protection Unit shall request from the Commission to pass a decision on the termination of application of the Protection Program. The termination of a Protection Program can may not be decided to the prejudice of the protected person.

Article 37
In case of prosecution for a criminal offense committed by the protected person before the change of identity, the Protection Unit shall ensure that the person appears at court, upon the request of the court. In such case the protected person shall participate in the criminal proceedings with his or her original identity.
In case of prosecution for a criminal offense committed by the protected person after the change of identity, the Protection Unit shall inform the Chief State Prosecutor and the Commission.
Article 38
In case the protected person has been invited as a witness in criminal proceedings for criminal offences committed before the application of the Protection Program has commenced, the summons shall be delivered to him or her with the mediation of the Protection Unit, which shall ensure the protected person's appearance at court.
Article 39
With the approval of the Protection Unit and in accordance with its instructions, the protected person may participate in the official proceeding using his or her original identity, when the use of such identity is necessary.
Article 40
In case it is determined that the security of the protected person can be ensured by the implementation of any other measure stipulated in Article 27, Paragraph 1, Items 1-3 of the present Law, except in case stipulated in Article 31, Paragraph 4 of the present Law, the Protection Unit may propose to the Commission, with the approval of the protected person, to terminate the measure of change of identity.
Article 41
The competent bodies and services keeping records on civil status, data and registers about personal data, status and other rights of citizens, as well as other records from which the data about the identity and permanent residence of a person could be determined, may provide data about the protected person only on the basis of prior approval of the Protection Unit.

Bodies and services as per referred to in Paragraph 1 of this Article shall, in case the data about the protected person have been requested by other bodies or persons, inform the Protection Unit thereof thereon without delay.

Article 42

The creation and use of personal documents pursuant to the present Law, and in order to undertake implement measures of concealing and changing identity, shall not be considered as a criminal offense.

7.CESSATION AND TERMINATION OF THE PROTECTION PROGRAM APPLICATION
Article 43
The Protection Program application shall cease:
1. Upon the expiry of the Contract
2. By death of the Protected Person

3. In case the Protected Person, parent or guardian of the minor protected person, or guardian or legal representative of the protected person completely or partially deprived of capacity to transact business with limited working ability or persons incapacitated for work, renounces the protection;

4. In case the Commission passes a decision on termination of the Protection
Program application.

In cases as per Paragraph 1, Items 1-3 of this Article the Commission shall pass a decision on cessation of the Protection Program application at the a proposal of the Head of the Protection Unit.

Article 44
At the a proposal of the Chief State Prosecutor or the Head of the Protection Unit the Commission may pass a decision on termination of the Protection Program application in case of:
1. The reasons justifying the Protection Program application no longer exist,
2. The Protected Person does not fulfill his or her contractual obligations,

3. A criminal proceedings has have been instituted against the Protected Person, in the course of application of the Protection Period Program,

4. The Protected Person refuses the employment offered by the Protection Unit without justified reason or rejects to continue performing other activity for earning income without a reason,

5. A foreign country, on whose territory of which the protected person has been located, requests the cessation of the Protection Program application for the reasons stated in international agreementtreaty,
6. The Protected Person provides false data, as per Article 19 of the present Law.
8. INTERNATIONAL COOPERATION Article 45
International cooperation shall be realized on the basis of assumed rights and obligations from international agreement treaty.
International agreement may provide for the relocation of the Protected Person outside the territory of the Republic or his or her reception in the territory of the Republic.
9. PROTECTION OF DATA PROTECTION AND RECORDS
Article 46

The employees of the Commission, Protection Unit, state bodies, local self- government units, organizations and other legal persons performing public duties in connection with the implementation of the Protection Program shall treat all documents and data pertaining to such work as official secrets, regardless of the manner by which those employees or legal persons became privy to such documents and data.Documents

and data pertaining to the work of the Commission, Protection Unit, state bodies, local self-government units, organizations and other legal persons performing public duties in connection with the Protection Program application shall be considered an official secret for their employees, regardless how they have learnt thereof.

In the event that there are justified reasons in connection with conducting proceedings before the court or other state body, or for security reasons, The the Commission may may pass a decision on declassify icationof an official secret applied tofrom being such with respect to the persons mentioned in Paragraph 1 of this Article. in case there are justified reasons in connection with conducting proceedings before a court or other state body or for security reasons

The data pertaining to the Protected protected Person person whose identity was changed shall be kept permanently with the Protection Unit and must be marked as an “Official secret”. The access to those data shall be approved and supervised by the Head of the Protection Unit.

The Commission shall pass the decision on declassification of protected data.
Article 47
The Protection Unit shall keep the records on the following:
1. Requests submitted for the application of the Protection Program application,
2. Data from the questionnaire,
3. Personal data of the Protected Person, his or her permanent or temporary residence, information related to the change of identity, as well as on all other data which have emerged in the course of application of measures and activities as provided for by the present Law,
4. Concluded contracts,
5. Protected Persons included into the Program on the basis of an international treaty.
10. FINANCING Article 48

The funds for the implementation of the present Law shall be secured provided in a special section line of the Republic budget referring to the Ministry of Interior.

11. TRANSITIONAL AND FINAL PROVISIONS
Article 49
The implementing regulations pursuant to the present Law shall be passed within six months at the latest from the day of coming into force of the present Law.
Article 50
The present Law shall come into force on the eighth day after being published in the “Official Gazette of the Republic of Montenegro”, and its application shall commence on 1 January 2005.