Act n.º 93/99, of 14 July 1999: Governing the enforcement
of measures on the protection of witnesses in criminal proceedings
1. This Act governs the enforcement of
measures on the protection of witnesses in criminal proceedings
where their lives, physical or mental integrity, freedom or
property of a considerably high value are in danger due to
their contribution to the collection of evidence of the facts
which are subject to investigation.
2. The measures stated in the previous paragraph may cover
the witnesses' relatives and other persons in close contact
3. This Act also provides for meaures intended to collect,
under the most satisfactory conditions, any testimonies or
statements of specially vulnerable persons, namely by reason
of age, even if the danger mentioned in paragraph 1 hereabove
does not apply.
4. The measures laid down in this Act
are extraordinary in nature, and they do not apply unless
deemed necessary and adequate in casu to the protection of
the persons involved and to the fulfillment of the purposes
of the proceedings.
5.The cross-examination allowing a fair
balance between the needs for combating crime and the right
to a defense is hereby guaranteed.
For the purposes of this Act
a) Witness means any person who, notwithstanding his status
towards the procedural law, is in possession of any information
or knowledge necessary to the disclosure, apprehension or
evaluation of facts subject to investigation and which are
likely to represent a danger to that person or to others
by virtue of paragraphs 1 and 2 of the previous article.
b) Intimidation means any kind of pressure or threat, either
direct, indirect or potential, exercised by any person over
a witness with a view to influence his testimony or statement;
c) Teleconference means any testimony or statement taken
in the witness's physical absence by using technical means
of transmission, at long distance and in actual time, either
of sound or animated images;
d) Identification features means any particulars which,
separate or jointly, enable a person's individualisation,
thus distinguishing him from any other person;
e) Residence means the place where the witness lives or
where he can be contacted.
The delay for any appeal from the decisions
mentioned in this Act is reduced to half its usual duration.
The appeal shall be immediately and separately committed to
the competent court.
Concealment and teleconference
1. The court may decide, either unofficially,
upon the request of the Public Prosecutor, or upon the demand
of the defendant or of the civil party claiming damages, that
the testimony or the statement must be taken by means of either
concealing the witness's image or distorting his voice, or
both, instead of taking the form of a public procedural act
or of a cross-examination, in order to avoid the witness's
2 - The decision must be based upon facts
or circumstances which reveal intimidation, or a high risk
of intimidation of the witness, and it shall also refer to
the degree of concealment of image or distortion of voice.
1. In case of offer of evidence relating
to a crime to be judged by a three-judge court or by a jury
court, whenever there are serious grounds to believe that
the protection is necessary, the use of teleconference is
admissible during the procedural acts mentioned in paragraph
1 of the previous article.
2. Teleconference can include the resort
to distortion either of image or voice, or of both, with a
view to avoid the witness's recognition.
1. The use of the teleconference is decided
either upon request of the Public Prosecutor, or upon the
defendant's or the witness's demand.
2. The request must specify the specific
circumstances which justify the measure and the distortion
of image and sound, if applied.
3. The decision is preceded with the hearing
of the non-applicant procedural subjects.
The long-distance testimony or satement
shall 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
Access to the location
The court may restrict the access to the
place where the testimony or the statement shall be taken,
allowance being granted to the technical staff, the officials
or the security personnel deemed strictly indispensable.
Whenever the witness's recognition by
image or voice is to be avoided or his identity is to be kept
unrevealed, the technical staff intervening in the teleconference
shall render a commitment not to disclose the location or
the witness's identification features. Should the technical
staff fail to do so, the punishment for aggravated disobedience
The judge presiding to the act shall guaranty
the presence of a judge at the location where the testimony
or the statement shall be taken, on whom shall be incumbent
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 mentioned in the previous section;
c) T o 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 answers in
e) To act as interlocutor of the judge presiding to the
act, by calling his attention to any incident occuring during
the testimony or statement;
f) To guaranty the authenticity and the integrity of the
video recording to be enclosed to the proceedings;
g) To take all the 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.
The questions to which the witness is
required to answer during the collection of evidence are made
at distance, and they shall observe the terms of the procedural
If, during the testimony or the statement,
any recognition of persons, documents or objects becomes necessary,
the witness shall allowed the respective visualization.
Non-disclosure of identity
Where the witness's identity is to remain
unrevealed, it is particulary incumbent of the judge presiding
to the act to avoid asking any question likely to induce the
witness to the indirect disclosure of his identity.
Access to sound and
1 - In case of the concealment of the
witness's image and voice, the access to the undistorted sound
and image is to be allowed in exclusive to the judge presiding
to the act or the court, should the technical means available
2 - The autonomous and direct communication
between both the judge presiding to the act and the escorting
magistrate, as well as between the defendant and his counsel,
shall be guaranteed in any circumstance.
The testimonies and 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.
the disclosure of the witness's identification features
The non-disclosure of the witness's identity
may cover one or all the phases of the proceeding provided
the following conditions occur concurrently ?
a) The testimony or the statement relates to criminal
offences stated in sections 169, 299, 300 or 301 of the
Criminal Code and in section 28 of the Cabinet Order nº
15/93, dated the 22nd January, or to criminal offences committed
by whoever belongs to a criminal association, in the scope
of its purpose or activity, and to which corresponds an
imprisonment sentence equal or superior to eight years;
b) The witness, his relatives or other persons in close
contact with him face a serious danger of attempt against
their lives, physical integrity, freedom or property of
a considerably high value;
c) The witness's credibility is beyond reasonable doubt;
d) The testimony or the statement constitutes a relevant
1. The non-disclosure of the witness's
identity is decided by the Examining Magistrate upon the request
of the Public Prosecutor.
2. The request contains the grounds for
the non-disclosure of the identity in casu, as well as the
reference to the evidence that must be offered thereto.
3. No Examining Magistrate can appreciate
a request for non-disclosure of a witness's identity in a
proceeding in which he has performed, ordered or authorised
any of the acts listed in article 286, paragraph 1, sub-paragraphs
a) and d), or in article 269, paragraph 1, sub-paragraphs
a) and c), both of the Criminal Procedure Code, as well as
in a proceeding in the scope of which he has presided over
preliminary acts of investigation or preliminary hearings.
4. The Examining Magistrate's decision
on a request for non-disclosure of identity impeaches him
to intervene in the proceeding thereafter.
of non-disclosure of identity
1. For purposes of decision on a request
for non-disclosure of identity a supplementary proceeding
of a confidential and urgent nature shall be separately prepared,
to which only the Examining Magistrate and whoever he appoints
for that purpose shall have access.
2. The Examining Magistrate shall be entrusted with the safekeeping
and confidentiality of the supplementary proceeding.
3. The Examining Magistrate asks 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. Unofficially or upon request
the Examining Magistrate makes the investigation he deems
indispensable to meet the requirements needed for the granting
of such a measure.
4. Before rendering his decision the Examining
Magistrate calls the Public Prosecutor and the representative
for the defence for an oral debate under cross-examination
on the grounds of the request.
5. The decision allowing the requested
measure confers the witness a codified reference, by which
he shall be referred afterwards in the proceeding. The reference
is transmitted to the judicial authority with jurisdiction
over the proceedings.
6. The defendant has the right to demand
the hearing set out in paragraph 4 hereabove in his benefit,
in case he assumes such a status by virtue of article 57 of
the Criminal Procedure Code after the measure of non-disclosure
of a witness's identity has been granted. Provisions of paragraphs
3 and 4 hereabove apply correspondently.
7. As soon as it is deemed unnecessary,
the measure is revoked by the Examining Magistrate upon the
request of the Public Prosecutor or upon the witness's demand,
the proprer procedural acts having been carried out and the
Public Prosecutor having been heard, in case he is not the
Witnesses' s testimony
or statement and respective probative value
1. The witness to whom it has been granted
the measure of non-disclosure of identity may make his testimony
or statement either by concealing his image or distorting
his voice, or through teleconference, pursuant to articles
4 and 5 hereabove.
2. No condemning decision can be based, exclusively or significantly,
upon the testimony or the statement made by one or more witnesses
whose identity has not been disclosed.
Security and special
measures and programs
Sporadic measures of
1. Where significant grounds for security
so justify and where the criminal offence requires the intervention
of a three?judge court or of a jury court, notwithstanding
the enforcement of other protective measures laid down in
this Act, the witness may benefit from sporadic measures of
a) Mention in the proceedings of an
address different from the one he uses or which does not
coincide with the domicile locations provided by the civil
b) Being granted 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,
to which he must displace himself and inside which he may
stay without the presence of other intervenients in the
d) Benefiting from police protection extended to his relatives
or other persons in close contact with him;
e) Benefiting from an inmate regimen which allow him to
remain isolated from the others and to be transported in
a separate vehicle.
2. The measures laid down in the previous
paragraph are ordered by the Public Prosecutor during the
enquiry, either unofficially, upon the demand of the witness
or his legal representative or upon proposal of the criminal
police authorities. Subsequent to the enquiry the said measures
are ordered by the Judge presiding to the current phase of
the proceeding, upon the request of the Public Prosecutor.
3. The judicial authority undertakes the
necessary procedures to assess in casu from the need and the
suitness of the measure.
4. Every third month the judicial authority reappreciates
the decision, either maintaining or modifying it, or revoking
the applied measures.
5. The police protection stated in paragraph 1, sub-paragraph
d) hereabove shall generally be at the charge of a police
entity which did not have a relevant intervention during the
Special programme of
Any witness, the respective wife or husband,
ancestors, descendants, brothers and sisters or any other
persons in close contact with him, may benefit from a special
programme of security during the running of the proceeding
or even after its closure, provided the following concurrent
conditions occur -
a) The testimony or statement concern the criminal offences
laid down in article 16, paragraph 1, sub-paragraph a);
b) There is a serious danger to their lives, physical or
psychical integrity or freedom;
c) The testimony or the statement constitutes a contribution
which is deemed, or has proved to be, essential to the ascertainment
of the truth.
Contents of the special
programme of security
1. The special programme of security includes
the enforcement of one or several administrative measures
of protection and support, eventually supplemented by duly
combined rules of behaviour to be complied with by the beneficiary.
2. For the purposes of the previous paragraph
the following measures are regarded, among others, as measures
of protection and support?
a) Delivery of documents officially
issued, including identification features different from
those previously inserted or that should be inserted in
the replaced documents;
b) Changes in the physiognomy or the body of the beneficiary;
c) Granting of a new place to live in the country ou 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 fo the obtaining of means
f) Granting of a survival allowance for a specific period
3. Where the special programme of security
includes rules of behaviour, their intentional non?compliance
entangles the exclusion from the programme.
The Commission for Special
Programmes of Security
1. It is hereby established a Commission
for Special Programmes of Security under the direct supervision
of the Minister of Justice, on whom the definition and the
implementation of special programmes of security shall be
2. The Commission for Special Programmes
of Security is composed of a president and a secretary - both
nominated by the Minister of Justice -, a judge and a public
prosecutor with experience in the field of the combat against
violent and organised crime - respectively appointed by the
High Council of the Judiciary and the High Council of the
Public Prosecution Service -, and one representative of the
Minister for Home Affairs appointed by the latter.
3.The decisions of the Commission shall
be taken by a simple majority of votes, and the president
shall have the casting vote.
4.The members of the Commission are nominated
for a renouvable three-year period.
1. Whenever possible, a unique confidential
proceeding covering the witness and the persons mentioned
in section 21 shall be organised for each special programme
2. With a view to the establishment and
enforcement of the programme the Commission shall be given
the most effective and prompt cooperation by all public entites.
3. The enforcement of the programme is
subject to the beneficiary's agreement, who shall sign the
declaration agreeing thereto and shall commit to respect the
4. The special programme of protection
can be modified whenever necessary. It shall be compulsively
reviewed from time to time as specified therein.
The personal intervention in a specific
criminal proceeding constitutes an impeachment to become a
member of the Commission for Special Programmes of Security
in the field of the definition and the enforcement of the
programme issued by virtue of such a proceeding.
1. Where a specially vulnerable witness
is to take part in a specific procedural act, the relevant
judicial authority shall make all efforts to ensure that,
notwithstanding other measures laid down in this Act, such
procedural act be held in the better conditions possible in
order to seek the spontaneity and the sincerety of the answers.
2. 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 dependance.
Accompaigning the specially
1. When realising the witness's special
vulbnerability the judicial authority shall appoint a social
welfare officer or any other person specially prepared to
accompaign the witness, and, if necessary, it shall designate
an expert to give the witness the psychological support he
2. The judicial authority presiding to
the procedural act may authorise the social welfare officer
or any other accompaigning person to stand by the witness
during the said procedural act.
Intervention in the
1. During the phase of enquiry the testimony
or the statement of a specially vulnerable witness shall be
made immediately after the commission of the concerned criminal
2. Whenever possible, a new hearing of
the specially vulnerable witness during the phase of enquiry
shall be avoided. The registry can also be required pursuant
to article 271 of the Criminal Procedure Code.
Intervention in the
phases subsequent to the enquiry
The judge presiding to any procedural
act, either public or under cross-examination, with a view
to obtain free, spontaneous and true answers may?
a) Direct the different acts so that the specially vulnerable
witness has never to encounter certain intervenients in
the same act, namely the defendant;
b) Take the witness's testimony or statement using means
of concealment or teleconference, namely at a different
location inside the court house, in which case the provisions
of article 4 and 5 shall apply after duly adapted;
c) Take the witness's testimony or statement. The associate
judges, the jurors, the Public Prosecutor and the counsel
for the defence, as well as the representatives for the
private prosecution and for the parties claiming damages
are only allowed to demand to the presiding judge the making
of additional questions.
Whenever deemed useful, the judge presiding
to a procedural act, either public or under cross-examination,
may notify the accompaigning person to appear before him together
with the specially vulnerable witness for the sole purposes
of presenting one another and allowing the witness to see
the room where the act shall take place.
1. In any phase of the proceedings the
specially vulnerable witness may temporarily be separated
from his family or from the restricted social group to which
2. The temporary separation is decided
by the judge upon the request of the Public Prosecutor.
3. Before taking a decision thereupon,
the judge carries out the necessary procedural acts by summoning
the specially vulnerable witness, the accompaiging person
and other persons whose statement or testimony the judge deems
necessary, namely the social welfare officer.
4. Whenever deemed necessary, the judge
requires the support and the supervision of the Social Welfare
Ruling orders and their
1. The Government shall take the organisative
and technical measures necessary to the correct enforcement
of this Act . Furthermore it shall ensure the availability
of the infrastructures and other technological means needed
2. The measures mentioned in the previous
paragraph may be required and adopted from the date, and under
the conditions, laid down in the legislation which shall rule
Entry into force
This Act shall enter into force on the
60th day following its publication.