Right to protection of victims with special needs during criminal proceedings

(according to Article 69 of Law 4478/2017)

Victims with special protection needs during criminal proceedings are protected by specialized measures, appropriate and specialized staff, and specific bodies.
Article 69 of Law 4478/2017 describes in detail the ways of protecting special victims:

1. Victims with special protection needs shall benefit from specific measures, which shall be decided following the individual assessment provided for in Article 68(1). A specific measure decided upon following individual assessment shall not be applied if it impedes the progress of the criminal proceedings or when there is an urgent need to examine the victim and failure to do so could harm the victim or another person or affect the course of the proceedings.

2. During course of the criminal investigation, victims with special protection needs identified in accordance with paragraph 1 of Article 68 shall have the following measures at their disposal:

• (a) the victim shall be examined in areas designed or adapted for that purpose,
• (b) the examination of the victim shall be carried out by pre-trial officers or prosecutors and judicial officers specially trained for this purpose,
• (c) each examination of the victim shall be conducted by the same persons, unless this would impede the proper administration of justice,
• (d) any examination of victims of sexual violence, gender-based violence, or domestic violence, if not conducted by a prosecutor or judge, shall be conducted by an individual of the same sex as the victim, if the victim so wishes, provided that the criminal proceedings are not impeded.

3. During the examination as a witness of the minor victim of the acts referred to in Articles 323A(4), 323B(a), 324, 336, 337(3) and (4), 338, 339, 342, 343, 345, 346, 348, 348 A, 348 B, 348 C, 349, 351, 351 A of the Criminal Code, as well as in Articles 29(5) and (6) and 30 of Law 4251/2014, a specially trained child psychologist or child psychiatrist and, in their absence, a psychologist or psychiatrist serving in the Independent Offices for Minor Victims or included in the list of experts, where these do not operate, shall be appointed and present as an expert witness, without the provisions of Articles 204 to 208 of the Code of Criminal Procedure being otherwise applicable. The examination as a witness of the minor victim shall necessarily be carried out at the Independent Offices for Minor Victims of the Appellate District or, where these do not exist, in spaces specially designed and adapted for this purpose, without undue delay and with as limited a number of interviews as possible.

The child psychologist or child psychiatrist shall prepare the minor for the examination, cooperating to this end with the pre-trial officers and the judicial officers. For this purposes, he or she shall utilize appropriate diagnostic methods, decide on the perceptual capacity and mental state of the minor, and draw up a written report of his or her findings, which shall form an integral part of the case file. Examination of the minor shall be carried out by the pre-trial investigation officers and the judicial officers through the child psychologist or child psychiatrist present. During the examination, the minor may be accompanied by his or her legal representative, unless the investigating judge, by reasoned decision, prohibits that person from being present for significant reasons, in particular in the event of a conflict of interest or the involvement of that person in the act under investigation.

The statement of the minor shall be made in writing and shall also be recorded on an electronic audiovisual medium. Electronic viewing of the minor’s statement shall replace the physical presence of the minor at subsequent stages of the procedure.

The written statement of the minor shall always be read in the hearing. If the minor has reached the age of eighteen at the time of the hearing, he or she may appear in person.

4. During examination as a witness of the victim of the acts referred to in Articles 323A and 351 of the Penal Code, a psychologist or psychiatrist shall be appointed and present as an expert witness, without the provisions of Articles 204 to 208 of the Code of Criminal Procedure being otherwise applicable.

The psychologist or psychiatrist shall prepare the victim for the examination, cooperating to this end with the preliminary investigation officers and with the prosecution and judicial officers. For this purpose, he or she shall utilize appropriate diagnostic methods, assess the perceptual capacity and mental state of the victim, and draw up a written report of his or her findings, which shall form an integral part of the case file. The psychiatrist or psychologist shall be present during the examination and the victim may be accompanied by his or her legal representative, unless the investigating judge, by reasoned decision, prohibits that person from being present, for significant reasons, in particular in the event of a conflict of interest or the involvement of that person in the act under investigation.

The victim’s statement shall be made in writing and shall also be recorded on an electronic audiovisual medium. Electronic viewing of the victim’s statement shall replace the physical presence of the victim at subsequent stages of the procedure.

5. If the victim is deaf or dumb, the victim shall be examined as follows: all questions and any comments shall be given to the deaf person, after being recorded by the Clerk in the ordinary investigation or the court, and the answers shall be provided by him or her in writing or in sign language. Questions and observations are given orally to the dumb person and the dumb person responds in writing or in sign language. At the hearing, the written answers provided by the deaf or dumb person, after being initialed by the President and the Clerk, shall be recorded in the minutes and shall be annexed to the case-file.

If the deaf or dumb person cannot read or write, the person conducting the questioning or directing the discussion shall appoint one or two interpreters, if possible, preferably chosen from among persons who are accustomed to communicating with the deaf or dumb person. In all other respects, the provisions relating to interpreters shall be complied with if possible.

6. During the hearing, victims with special protection needs recognized in accordance with Article 68 paragraph 1 hereof shall have the following measures at their disposal:

• (a) The victim’s statement given in accordance with paragraph 4 hereof, made in writing or by means of an electronic audiovisual medium, shall always be read out at the hearing. The Prosecutor or the parties may request from the President of the Court that he or she be examined if he or she has not been examined at the preliminary hearing, or if he or she needs to be examined further. If the request is granted, the victim shall be examined on the basis of clearly stated questions, without the parties being present, wherever he or she may be located, by an investigating officer appointed by the judge who ordered the examination or in a specially configured space using an electronic audiovisual device which shall replace his or her physical presence in the courtroom so as to avoid any visual contact between him or her and the offender. Sub-paragraphs 1 and 2 of paragraph 4 of this Article shall also apply in such cases.
• (b) The written statement of the minor victim given pursuant to paragraph 3 hereof, made in writing or by means of an electronic audiovisual medium, shall always be read out during the hearing. If the minor has reached the age of eighteen at the time of the hearing, he or she may appear in person if this is deemed absolutely necessary. The prosecutor or the parties may request the examination of the minor from the President of the court if he or she has not been examined during the ordinary investigation or needs to be further examined. If the request is granted, the examination of the minor shall be conducted on the basis of clearly stated questions, without the parties being present, wherever he or she may be located, by an investigating officer appointed by the judge who ordered the examination. Sub-paragraphs 1 and 2 of paragraph 3 hereof shall also apply in such cases.
• (c) During the examination, questions about the victim’s private life that are not relevant to the offence shall be avoided.

7. Where the victim is a minor and the holders of parental responsibility are excluded from representing him or her due to a conflict of interest between them and the minor or where the minor victim is unaccompanied or living separately from his or her family, the competent prosecutorial or judicial authority shall, depending on the stage of the criminal proceedings, where the case is pending, appoint a Juvenile Probation Officer as a special representative of the minor victim. Where the minor victim is entitled to a lawyer, in accordance with the provisions of Law 3226/2004, he or she shall be entitled to have legal advice and a legal representative acting on his or her behalf in proceedings where there is or could be a conflict of interest between the minor victim and the holders of parental responsibility.

8. When it is uncertain whether the age of the victim is below or above eighteen years, the victim shall be presumed to be a minor for the purposes of present Law.