Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido el 24/06/2022 Aceptado el 15/08/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
M. C
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Co mi té Edi tor
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Asis ten tes Ad mi nis tra ti vos
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 40, Nº 74 (2022), 29-47
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Security of the participants in the
criminal process: procedural and
criminological aspects
DOI: https://doi.org/10.46398/cuestpol.4074.01
Mykhailo Huzela *
Iryna Shulhan **
Ruslan Shekhavtsov ***
Andrii Khytra ****
Maryna Kukos *****
Abstract
This article is devoted to the study of procedural and
criminological aspects of ensuring the safety of participants
in criminal proceedings. The problems of legal regulation of
ensuring the safety of participants in these proceedings are also
considered. The legal status of the subjects of relevant decisions
is analyzed and the international and Ukrainian experience in regulating
these issues is studied. The methods of dialectical, formal-logical, historical,
structural-functional, institutional analysis, content analysis of laws and
regulations and the method of evaluation of scientic positions were used.
Among the relevant results of the research, the necessity of implementing
security measures for participants of criminal proceedings in the Criminal
Procedure Code of Ukraine in a separate section was demonstrated.
Similarly, the expediency of creating in Ukraine a specialized independent
structural unit for the implementation of measures to protect persons
involved in criminal proceedings is discussed. In the main conclusions the
need for the introduction in Ukraine of corresponding programs for the
protection of participants in criminal proceedings is argued.
* PhD in Law, Associate Professor of the Department Criminal law and Criminal Procedure at Іnstitute
of Law, Psychology and Innovative Education of the National University Lviv Polytechnic University,
Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-2254-6990
** PhD in Law, Assistant of the Department Criminal law and Criminal Procedure at Іnstitute of Law,
Psychology and Innovative Education of the National University Lviv Polytechnic University, Lviv,
Ukraine. ORСID ID: https://orcid.org/0000-0002-9623-3495
*** Candidate of legal sciences, Associate Professor, Associate Dean of the Faculty №1 of the Institute for
the Training of Specialists for National Police Units of Lviv State University of Internal Aairs, Ukraine,
Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-4756-9849
**** Candidate of legal sciences, Associate Professor, Head of the Department of Criminal Procedure and
Criminalistics of Lviv State University of Internal Aairs, Lviv, Ukraine, ORСID ID: https://orcid.
org/0000-0002-7125-1953
***** Candidate of Higher Education, Doctor of Philosophy at Department of Doctoral and Adjunct Studies
of the National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0001-
7386-2208
30
Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
Keywords: criminal proceedings; opposition to the investigation;
individual rights and freedoms; security of participants in
criminal proceedings; security measures.
Seguridad de los participantes en el proceso penal:
aspectos procesales y criminológicos
Resumen
Este artículo está dedicado al estudio de los aspectos procesales y
criminológicos para garantizar la seguridad de los participantes en los
procesos penales. También se consideran los problemas de regulación
legal para garantizar la seguridad de los participantes en estos procesos.
Se analiza el estado legal de los sujetos de las decisiones relevantes y se
estudia la experiencia internacional y ucraniana en la regulación de estos
temas. Se utilizaron los métodos de análisis dialéctico, formal-lógico,
histórico, estructural-funcional, institucional, análisis de contenido de
leyes y reglamentos y el método de evaluación de posiciones cientícas.
Entres los resultados relevantes de la iunvestigacion, se demostró la
necesidad de implementar medidas de seguridad para los participantes
en procesos penales en el Código de Procedimiento Penal de Ucrania en
una sección separada. Del mismo modo, se discute la conveniencia de
crear en Ucrania una unidad estructural independiente especializada para
la implementación de medidas para proteger a las personas involucradas
en procesos penales. En las principales consclusiones se argumenta la
necesidad de la introducción en Ucrania de los programas correspondientes
de protección de los participantes en los procesos penales.
Palabras clave: proceso penal; oposición a la investigación; derechos y
libertades individuales; seguridad de los participantes
en el proceso penal; medidas de seguridad.
Introduction
Indispensable phenomenon of public life is crime of various
characteristics - organized, corrupt, professional, economic, transnational,
etc., the ght against which in modern conditions requires a fairly new
approach to the means and methods of detecting and investigating criminal
acts, gathering information about it, etc. (Kopetyuk, 2013). Equally
important is the activity to combat the relevant criminal manifestations,
because modern crime is changing, becoming multi-purpose and dicult
to predict.
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 29-47
The Great Ukrainian Legal Encyclopedia denes crime prevention as
the activity of criminal justice bodies, other authorized institutions and
organizations and individual citizens to identify, stop, investigate and
prosecute perpetrators of criminal oenses, as well as search, record and
prevent intelligence and subversive activities of special services foreign
states, organizations or individuals in order to protect and ensure the
security of citizens, society and the state from unlawful encroachments.
One of the spheres of public relations covered by the ght against crime
is crime prevention (detection, elimination or neutralization of the causes
and conditions of criminal oenses; the other is law enforcement (national
security, protection of human rights and freedoms) (The Great Ukrainian
Legal Encyclopedia, 2019), Both of these areas in one way or another relate
to security measures, which, subject to appropriate conditions and grounds,
may be applied to participants in criminal proceedings.
Some scholars (Austin) link the eectiveness of the ght against crime
with the application of harsh measures to those who have committed
socially dangerous acts (Austin, 1992). However, most scholars (Laitinen;
Pasechnik) Support the view that the severity of criminal punishment and
crime reduction rarely coincide (Laitinen, 1993; Pasechnik, 2019).
The ultimate goal of preventing crimes against participants in criminal
proceedings is to identify the causes and conditions that determine these
socially dangerous acts; deterring citizens from committing them in order
to reduce and reduce to a minimum the totality of crimes. Therefore,
speaking about improving the eectiveness of preventive activities, we
should, in our opinion, pay special attention to special criminological
measures, which include measures to ensure the safety of participants in
criminal proceedings.
Techniques and methods of physical and psychological inuence are
often used against participants in criminal proceedings in order to change or
deny their testimony. Such illegal actions in criminal proceedings are carried
out mainly in order to prevent the establishment of the circumstances of a
criminal oense. However, this is not the only goal. Post-criminal action, as
practice shows, can also be carried out in order to prevent the promotion of
justice, coercion of persons to stop assistance, revenge for assistance, and so
on. Accordingly, the causes of encroachment are mostly the intention and
even the potential ability of the person to promote justice, direct assistance.
It is these factors, and not the presence of a person of a particular criminal
procedural status is the cause of post-criminal inuence (endowed with
procedural status, a person can take a passive position).
It is indisputable that the personal security of each subject of criminal
procedural relations, his relatives and friends, protection of property from
unlawful encroachments are important conditions for eective solution
of general problems of criminal proceedings. The importance of security
32
Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
guarantees for participants in criminal proceedings is also emphasized in
international legal acts. Legal norms governing such legal relations are
contained, for example, in Art. 13 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention
Against Torture and Other Cruel, Inhuman or Defendant, 1987) and аrticles
54, 57, 64, 68, 93 of the Rome Statute of the International Criminal Court
(Rome Statute of The International Criminal Court, 2002).
Ensuring the state protection of participants in modern criminal justice
in any country is one of the important elements of its criminal procedural
policy. Security is especially needed for those who contribute to criminal
justice through their participation in the proceedings: it is for this reason
that they are most often subjected to illegal action by criminal elements.
In recent decades, the Institute for Ensuring Safe Conditions for
Participation in Criminal Proceedings has attracted the attention of experts
due to the need to establish important criminal procedural guarantees
for gathering evidence and fullling the purpose of criminal proceedings.
This complex procedure combines a number of problems, among which a
special place is occupied by: a) ensuring the interests of the state in the
ght against crime and b) protection from illegal inuence of citizens as
participants in criminal proceedings.
Security issues are conrmed by the fact that certain provisions of the
Сriminal procedure code of Ukraine on the application of criminal security
measures are often the subject of consideration by higher courts, which do
not see violations of constitutional requirements for security measures in
certain criminal proceedings.
In addition to the existing legislative, procedural and criminological,
which we will discuss in more detail in the article, scholars highlight the
economic and organizational problems of applying security measures to
participants in criminal proceedings. Organizational problems include:
timeliness of security measures; insucient awareness of law enforcement
ocers who decide on the application of security measures; lack of proper
interaction between the initiating entities and the entities implementing
the decision to take security measures; partial (incomplete) awareness of
decision-making bodies on the application of security measures, on all
available capabilities and resources of special units of the judicial police,
etc. (Bardatska and Orleans, 2010).
Thus, in the current conditions of development of criminal procedural
legal relations, the need to identify and study new legal means and ways to
protect the rights and interests of the individual participants in criminal
proceedings, which ensure healthy coexistence in society, is becoming
increasingly important. At the same time, national and international legal
systems preach the freedom of the individual and the autonomy of the will
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CUESTIONES POLÍTICAS
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in combination with the free development of the individual and dignity
(Leal Esper, 2021).
1. Methodology of the study
According to the purpose, tasks, object and subject of research, general
scientic and special methods of cognition were used. The methodological
basis of the scientic article is based on the methods of dialectical, formal-
logical, historical, structural-functional, institutional analysis, as well as
content analysis of laws and regulations and the method of evaluating
scientic positions.
Using the dialectical method, the author’s tasks to dene the concept of
«security measures» as an independent component of the national security
system were solved.
The formal-logical method allowed to clarify the peculiarities of certain
legal acts, identify inconsistencies in the legislation, as well as helped to draw
conclusions and provide suggestions for further improvement of security
mechanisms for participants in criminal proceedings on the principles
of logic and problem solving. The logical-dogmatic method was used in
the interpretation of certain scientic and legislative terms, provisions
of legislation, the formulation of denitions of criminal procedural and
criminological concepts and categories.
The structural-functional method allowed to consider measures to
prevent and detect criminal oenses as a holistic system, to explore its
structural elements and to determine the place in this system of measures
to ensure the safety of criminal proceedings.
The method of systematic analysis and synthesis was used to compare
the concepts of «crime prevention», protection of individual rights and
«security measures».
The article uses the institutional method of research, which allowed
to determine the role of security measures for participants in criminal
proceedings in the implementation of the tasks of the criminal process. At
the same time, the methodology of the actual system analysis of the object of
study consisted of system, structural-functional and evolutionary methods.
The most important methodological role in the study was played by the
conceptual provisions and the conceptual and categorical apparatus of the
theory of criminal procedure and criminological science.
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Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
2. Analysis of recent research
Analyzing the degree of scientic development of research on the
security of participants in criminal proceedings, it should be emphasized
that the science of criminal procedure and criminology and the cycle of
other legal sciences lacks an understanding of «security of participants
in criminal proceedings». Important publications on this topic have been
made by such scholars as M. Pasechnik (Pasechnik, 2019), A. Orlean
(Orlean, 2016), Kopetyuk (Kopetyuk, 2013), O. Podobnij, (Podobnij, 2015),
Austin (Austin, 1992) and others.
Given the interests of the investigation, as well as that the Constitution
of Ukraine in art. 3 proclaims the human person, his life and health,
inviolability and security as the highest social value, it is necessary to
ensure the safety of witnesses, victims and others within the relevant legal
institution. The existing institute of security of participants in criminal
proceedings in Ukraine is not eective enough, the use of foreign experience
and recommendations of international organizations on this phenomenon
will allow to focus on existing problems and develop ways to solve them.
We also share the view of some scholars that the tools available in
Ukraine to ensure the safety of participants in criminal proceedings does
not cause signicant dissonance with existing European standards in this
area, and the current state does not allow to argue about their harmonious
compliance (Orlean, 2016). The mechanism for selecting and applying
certain security measures in accordance with the standards of the witness
protection program provided for in Recommendation Rec (2005) 9 of
the Committee of Ministers of the Council of Europe on the protection
of witnesses and persons cooperating with the judiciary requires need
protection.
Therefore, there is a need to further study the world experience and
develop appropriate recommendations for improving Ukrainian legislation.
This determines the relevance of the chosen research topic.
The purpose of the article is to study Ukrainian and foreign legislation,
developments of scientists and world best practices to ensure the security of
criminal proceedings and develop recommendations, practical provisions
for improving this institution in Ukraine.
Achieving this goal involves the following tasks: 1) to outline the
features of the legal regulation of the procedure for ensuring the safety of
participants in criminal proceedings in Ukraine; 2) determine international
standards for ensuring the safety of participants in criminal proceedings; 3)
to study the foreign experience of organizing the relevant institution within
dierent legal systems; 4) to formulate proposals for the improvement of
normative legal acts, which regulate the relations concerning the protection
of participants in criminal proceedings.
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CUESTIONES POLÍTICAS
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3. Results and discussion
3.1. General characteristics of security measures of participants
in criminal proceedings
Nowadays, it is not uncommon for participants in criminal proceedings,
in particular witnesses, victims, and sometimes suspects and accused,
to refuse to disclose to authorized entities information about a criminal
oense committed or being prepared, due to fears of life, health, property
benets of themselves and their relatives and friends.
Under such conditions, the application of security measures is an
eective means of investigating criminal oenses and preventing unlawful
inuence on participants in criminal proceedings and other interested
persons.
Ensuring the safety of participants in criminal proceedings since
1993 is decided on the legal basis established by the laws of Ukraine «On
ensuring the safety of persons involved in criminal proceedings» and «On
state protection of court and law enforcement ocers» (On Ensuring The
Safety Of Persons Participating In Criminal Proceedings, 1993; On State
Protection Of Employees Of Courts And Law Enforcement Bodies, 1994).
Ensuring the safety of persons involved in criminal proceedings, ie in
the detection, prevention, cessation or investigation of criminal oenses,
as well as in the trial of criminal proceedings - is the implementation of law
enforcement agencies legal, organizational, technical and other measures
to protect life, housing, health and property of these persons from unlawful
encroachments, in order to create the necessary conditions for the proper
administration of justice (On Ensuring The Safety Of Persons Participating
In Criminal Proceedings, 1993).
In the Law of Ukraine «On Ensuring the Security of Persons Participating
in Criminal Proceedings», the legislator classies the following as security
measures: personal protection; protection of housing and property through
equipment with re and burglar alarms; change of apartment telephone
numbers and state license plates of vehicles; issuance of special means of
individual protection and danger notication; use of technical means of
control and eavesdropping on telephone and other conversations; visual
observation in case of danger to life and health of the persons taken under
protection; visual observation in case of threat of violence or other illegal
actions against persons taken under protection; replacement of documents
and change of appearance; change of place of work or study; relocation to
another place of residence; placement in a preschool educational institution
or an institution of social protection bodies; ensuring the condentiality
of personal information; closed trial (On Ensuring The Safety Of Persons
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Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
Participating In Criminal Proceedings, 1993). In addition, in Part 2 of art. 7
of the said Law indicates the possibility of applying other security measures
taking into account the nature and degree of danger to life, health, housing
and property of persons taken under protection, ie the list of such means is
open (Law Of Ukraine, 1993).
Some scholars identify other measures that in specic circumstances
best meet the interests of security of participants in criminal proceedings:
ocial written warning of a person who may pose a potential threat to the
person under protection, criminal liability under art. 386 of the Criminal
Code of Ukraine for obstructing the appearance of a witness, victim or
expert in court, pre-trial investigation bodies, forcing them to refuse to
testify or report, as well as to give knowingly false testimony or opinion by
threatening to kill, violence, destroy property or their close relatives or the
disclosure of information that discredits them, or the bribery of a witness,
victim or expert for the same purpose, as well as the threat to commit such
acts in retaliation for previous testimony or conclusion; declaration of a
person taken under protection as dead or missing; adoption of a juvenile
under protection who has lost a parent as a result of a crime; change of
home and mobile phone numbers to numbers that will not be displayed
in telephone directories and information about which will not be provided
by operators without special permission; minimizing open contacts with
police ocers in the form and use of secret premises for contact with a
person, etc. (Orleans, 2016).
Also, in accordance with art. 10 of the Criminal-Executive Code of
Ukraine, the following security measures may be additionally applied to
convicts: isolated detention; transfer to another penitentiary institution;
transfer of the convict to a safe place (Criminal Enforcement Code Of
Ukraine, 2003).
It should be emphasized that this list of security measures is not
exhaustive and taking into account the nature and degree of danger to life,
health, housing and property of persons taken under protection; other
measures may be applied to them.
Based on the generalization of legislative denitions of security of
persons involved in criminal proceedings, as well as scientic views on
their nature, we can dene security measures for participants in criminal
proceedings as a set of organizational, legal, technical and other measures
provided by authorized entities , and which are aimed at protecting the life,
health, housing, property, honor, dignity of persons involved in criminal
proceedings, their relatives and friends from unlawful encroachments
in order to create appropriate conditions for the administration and
administration of justice.
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 29-47
Scientists have repeatedly drawn attention to the lack of correctness
in the list of security measures specied in the regulations. In particular,
R. Tarasenko emphasizes the expediency of their classication as follows:
measures aimed at ensuring the condentiality of information about
participants in criminal proceedings; measures aimed at protecting the life,
health, housing and property of participants in criminal proceedings; long-
term relocation measures. The researcher emphasizes that decisions on the
application and practical implementation of certain security measures in
criminal proceedings to varying degrees restrict the rights and legitimate
interests of the accused, and therefore require a clear criminal procedure
(Tarasenko, 2015).
The eectiveness of security measures is ensured under the conditions
of integrated application, in particular in combination with measures
to ensure the condentiality of personal information. The responsibility
for carrying out these measures in the framework of operational and
investigative support of criminal proceedings rests with the employees of
authorized operational units. Therefore, O. Podobnij emphasizes that the
use of technical means of control, wiretapping and other conversations,
visual observation in today’s legal environment should be implemented
through qualied covert investigative (investigative) actions under the
Criminal Procedure Code of Ukraine in articles 260, 268, 269, 270. Taking
these security measures in accordance with the legal procedure provided
for covert investigative (investigative) actions will make it possible to
immediately introduce them into the criminal proceedings as evidence of
relevant criminal activity (Podobnij, 2015).
Summing up, we note that we defend the position on the feasibility of
implementing security measures for participants in criminal proceedings,
which are an element of investigative secrecy, to the Criminal Procedure
Code of Ukraine in a separate section «Ensuring the safety of participants in
criminal proceedings». Instead, the concretization of the provisions set out
in the Criminal Procedure Code of Ukraine should be ensured by the Laws
of Ukraine «On Ensuring the Security of Persons Participating in Criminal
Proceedings», «On Investigative Activities» and «On State Protection
of Court and Law Enforcement Employees» and other departmental
regulations.
It should also be noted that an important guarantee of the activity of
individuals in exposing corruption oenses is the institute of protection of
whistleblowers introduced to implement international conventions against
corruption.
Yes, in accordance with art. 33 of the United Nations Convention against
Corruption, each State Party shall consider including in its domestic legal
system appropriate measures to ensure the protection of all persons who, in
good faith and on reasonable grounds, report to the competent authorities
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Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
any facts relating to crimes under this Convention from any unjust treatment
(United Nations Convention Against Corruption, 2003).
Also, the provision on the need to protect such persons is contained in art.
22 of the Council of Europe Criminal Law Convention on Corruption, which
requires each Party to take such measures as may be necessary to ensure
the eective and adequate protection of persons who report corruption
oenses under the Convention or otherwise cooperate with investigative
and prosecuting authorities. , as well as witnesses who testify about these
crimes (Criminal Convention For The Suppression Of Corruption, 1999). A
similar rule is contained in Art. 9 of the Council of Europe Civil Convention
against Corruption, according to which each Party provides in its domestic
law for adequate protection against any unjustied sanction against
workers who have sucient grounds to suspect corruption and report their
suspicions in good faith to responsible persons or competent authorities
(Civil Convention Against Corruption, 1999).
In accordance with Part 2 of art. 53 of the Law of Ukraine «On Ensuring
the Security of Persons Participating in Criminal Proceedings» the right
to security is available only to whistleblowers who reported a criminal
corruption oense and acquired procedural status of the applicant, as well
as relatives of whistleblowers who reported a criminal corruption oense
(Ensuring The Safety Of Persons Participating In Criminal Proceedings,
1993). Therefore, whistleblowers who report corruption, not corruption, or
other violations of the law are not eligible for security.
3.2. International standards for ensuring the safety of
participants in criminal proceedings
The study of international standards for ensuring the safety of
participants in criminal proceedings includes the analysis of interstate,
intergovernmental and interdepartmental agreements, as well as legal acts
of international organizations in this eld.
The issue of interrogation of a witness with condentiality of his identity
largely aects the rights of the accused guaranteed by paragraph 1 and
subparagraph «d» of paragraph 3 of article 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms. and to demand
the summoning and questioning of defense witnesses on the same terms as
prosecution witnesses (Judgment of the European Court of Human Rights
in the case of Miralishvili v. Russia; Judgment of the European Court of
Human Rights in the case of Van Mechelen and Others v. The Netherlands;
Judgment of the European Court of Human Rights in the case of Doorson
v. The Netherlands).
This issue was thoroughly analyzed in the decision in the case of
Miralishvili v. Russia. Following the review of the European Court of Human
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Vol. 40 Nº 74 (2022): 29-47
Rights, it developed the following criteria for assessing the decision of the
national court to conceal information about a witness from the defense:
1) whether the reasons for concealing information were appropriate and
sucient (paragraph 196); 2) whether the hidden materials had signicant
probative value (paragraph 199); 3) whether there were signicant
procedural guarantees in the decision-making procedure to restrict access
to information.
In particular, it is important whether the decision to restrict access to
information was made by the court and whether the court had access to non-
disclosed materials, and how the court could investigate the relationship
(balance) between the disclosure interests and the public interest in non-
disclosure of such data (paragraph 197).
Also important is the possibility of the accused’s participation in the
issue of non-disclosure of data (paragraph 198) Judgment of the European
Court of Human Rights in the case of Miralishvili v. Russia). Thus, as a
result of the case, the court reprimanded the Russian national court for
the fact that the decision to restrict access to materials was based solely on
the type of materials and legal restrictions on their disclosure. At the same
time, the said court failed to analyze the balance between the interests of the
accused and the public interest in non-disclosure of such data (paragraphs
206209) (Didenko, 2022).
Therefore, the above conclusions of the European Court of Human Rights
should encourage national courts to approach the issue of interrogation of a
witness with condentiality of his identity, not formally but substantively.
The court, considering the relevant issue, must substantially determine the
existence of reasons for concealing information about the witness. It is also
necessary to assess whether such reasons are sucient to consider that the
public interest in non-disclosure outweighs the legitimate interests of the
parties to the proceedings to ensure adversarial proceedings. The accused
must be provided with the right to participate in deciding whether there are
grounds for non-disclosure of witness data (Didenko, 2022).
According to case law, quite often the prosecution is unable to prove that
a witness really needs protection. Thus, in the decision of the Volodymyr-
Volyn City Court of the Volyn region of August 2, 2019, attention was
focused on the lack of evidence of the exceptional circumstances justifying
the prosecutor’s request to interrogate the witness with security measures.
It was pointed out that there is evidence that the defendants are aware
of the identity of the witness at the time of the petition (Decision of the
Volodymyr-Volyn City Court of the Volyn Region, 2019).
From the above it can be concluded that the defense must be active in
collecting and submitting to the court appropriate and sucient evidence
for examination by the court. Such evidence must conrm both the
40
Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
procedural status of the witness as a person subject to security measures in
criminal proceedings and the availability of evidence of a real threat to his
or her safety.
At the same time, it should be borne in mind that even if all the above
requirements are met, the data obtained from the testimony of a person
cannot be the only or decisive proof of a person’s guilt. This is emphasized,
in particular in paragraph 51 of the judgment in Van Mechelen and Others
v. The Netherlands, the European Court of Human Rights stated: of Human
Rights in the case of Van Mechelen and Others v. The Netherlands).
3.3. Foreign experience in applying security measures to
participants in criminal proceedings
In order to succeed in the process of ensuring the security of participants
in criminal proceedings, it is advisable to analyze the legislation of
both states that are successful in protecting witnesses and victims, and
neighboring states with which Ukraine is historically connected. It should
be noted that in most developed countries, various special programs have
been developed to provide protection and moral and material assistance
to victims, witnesses and other participants in criminal proceedings. Such
programs are eectively used in the United States, Germany, France and
other countries.
The scientic literature (Rivman and Ustinov) emphasized the
dependence of crime prevention on a number of circumstances, such as
the formal possibility of isolation of actors in the conict situation, the
availability of public authorities «forces and means to timely stop criminal
events» (Rivman and Ustinov, 1998). One of the eective options may be
to develop a legal basis for the police to remove (isolate) the victim and the
perpetrator, control and response by the police to the further behavior of
the perpetrator.
This experience of preventing secondary victimization has been
implemented in a number of foreign countries. For example, in the Federal
Republic of Germany, in the eld of combating domestic violence, the
sources of police law in various federal states provide for the possibility of
applying such police measures as: removal from the apartment (house) of
the person from whom the danger comes; ban on access to an apartment
(house) and ban on contacting such a person (Maile, 2012).
In the Kingdom of the Netherlands, a person who has nally decided to
change his or her name cannot change his or her place and date of birth, as
civil and political rights, such as the right to a pension and the right to vote,
depend on them. Therefore, new personal data is usually provided to those
involved in the program for temporary use, which allows you to change the
place and date of birth. At the end of participation in the program, these
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CUESTIONES POLÍTICAS
Vol. 40 Nº 74 (2022): 29-47
temporary personal data also lose their validity (Recommended practices
in the eld of witness protection in organized crime, 2008).
The Witness and Victim Protection Program in the Slovak Republic
covers persons who report important evidence to the court about the
criminal activities of terrorist organizations, those who prepare or have
committed a terrorist act, and the criminal activities of organized criminal
groups. The program may also cover those persons who themselves took
part in the commission of crimes, but refused to commit them further. But
because these people are criminals, any of their information is veried.
Police ocers are not covered by the program. Other special social norms
are provided for them (Brit, 2017).
Particular attention should be paid to the study of foreign experience in
identifying entities authorized to apply security measures to participants
in criminal proceedings. In particular, the question of which body decides
on the application of security measures is important. In some countries,
the decision to apply security measures is made by one ocial (Minister of
Justice, Prosecutor or Chief of Police). In Germany, decisions on inclusion in
or exclusion from the program are made by the security unit and the public
prosecutor (Azarov, 2003). In Ukraine, such persons are, in accordance
with paragraph 2 of art. 3 law, investigator, prosecutor and court, as well as
the body carrying out operational and investigative activities (On Ensuring
The Safety Of Persons Participating In Criminal Proceedings, 1993).
In our opinion, this list of persons, although extensive, does not indicate
the possibility of an objective assessment of the threats reported by the
witness or the victim. In this case, it is important that the authorized entity
has a set of skills, abilities and knowledge in this area. Such knowledge is
not always related to holding a position of legal orientation, here, obviously,
knowledge of the psychology of human behavior in conditions of constant
fear and intimidation is necessary, it will allow you to really assess the level
of threat and choose a balanced decision.
The best practices of European countries include the establishment of
an interagency Commission that decides on the inclusion of a witness in the
protection program. For example, in Belgium and Italy it is implemented by
multidisciplinary bodies: a commission consisting of the Deputy Secretary
of State of the Ministry of Interior, judges, prosecutors, experts in the eld
of organized crime (Semkiv, 2017).
It is also important to note the dierent place in the system of public
authorities of those structures that are designed to ensure the safety of
witnesses. In the United States, the Bailis Service is responsible for the
WITSEC program, and in the Federal Republic of Germany, it is handled
by a special criminal police unit. In the United Kingdom, Austria and
Slovakia, witness protection is provided by the police; in the Kingdom of
42
Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
the Netherlands, the program operates within the executive and judiciary
(Semkiv, 2017).
The key feature in these examples is that these bodies have operational
autonomy and do not participate in the preparation of the case or the
investigation, which corresponds to paragraph 28 of the Council of Europe
Recommendations (2005) 9 (Recommendation № Rec (2005) 9 of the
Committee of Ministers of the Council of Europe to member states on the
protection of witnesses and persons cooperating with justice). According
to art. 3 of the Law (On Ensuring The Safety Of Persons Participating In
Criminal Proceedings, 1993).
In fact, these bodies are part of the prosecution, they are not endowed
with the appropriate autonomy, and the high degree of fragmentation in the
investigation indicates the lack of any specialization and properly trained
sta. It should also be noted that there is a lack of coordination and quality
interaction between these bodies, given that there is also no single center in
the form of a coordinating body, we can talk about the low eciency of the
existing institution of security of persons involved in criminal proceedings.
In view of the above, we see the expediency of creating in Ukraine a
specialized independent structural unit for the implementation of measures
to protect persons involved in criminal proceedings. The main goal is to
recruit qualied sta and create a single center to coordinate decisions and
actions of pre-trial investigation bodies.
In general, the experience of foreign countries shows that the eective
implementation of security measures leads to positive results and
strengthens public condence in justice, encourages them to testify in
criminal proceedings. Thus, given the positive foreign experience in the
implementation of programs to protect witnesses and other participants in
criminal proceedings. We share the view of some scholars that a signicant
gap in domestic legislation should be the lack of witness protection
programs in the practice of ensuring the safety of participants in criminal
proceedings, as the presence of such programs would be an eective means
of combating crime, would give law enforcement agencies ensuring the
safety of persons involved in criminal proceedings (Mikhailova, 2010).
Of course, the problems studied in the scientic article are complex
and concern the interests of various subjects of legal relations that arise in
connection with the application of security measures against participants
in criminal proceedings. The main criteria for the eectiveness of public
authorities should be the legality, eciency and eectiveness of their work.
It is obvious that the rights and legitimate interests of the protected person
should be a priority in the positive solution of these issues.
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Vol. 40 Nº 74 (2022): 29-47
Conclusions
The study of procedural and criminological aspects of ensuring the safety
of participants in criminal proceedings allowed us to draw the following
main conceptual conclusions:
Measures to ensure the safety of participants in criminal proceedings
- a set of organizational, legal, technical and other measures provided by
authorized entities, which are aimed at protecting the life, health, housing,
property, honor, dignity of persons involved in criminal proceedings, their
relatives and friends from unlawful encroachments in order to create
appropriate conditions for the administration and administration of justice.
An important guarantee of the activity of individuals in detecting
corruption oenses is the institute of protection of whistleblowers
introduced to implement international conventions on combating
corruption. However, whistleblowers who report corruption but other
corruption or other legal requirements are not entitled to security.
The defense must be active in gathering and submitting to the court
appropriate and sucient evidence for examination by the court, which
should conrm both the procedural status of the person subject to
security measures in criminal proceedings and the availability of evidence
of real threat to him. security. At the same time, even if all the statutory
requirements are met, the data obtained from a person’s testimony cannot
be the only or decisive proof of a person’s guilt.
The eectiveness of security measures is ensured under the conditions
of integrated application, in particular in combination with measures to
ensure the condentiality of personal information.
It is expedient to implement security measures for participants in
criminal proceedings in the Criminal Procedure Code of Ukraine in
the form of a separate section «Ensuring the security of participants in
criminal proceedings». Instead, the specication of these provisions should
be ensured by the Laws of Ukraine «On Ensuring the Safety of Persons
Participating in Criminal Proceedings», «On Investigative Activities» and
«On State Protection of Court and Law Enforcement Ocials» and other
departmental regulations.
We see the expediency of establishing in Ukraine a specialized
independent structural unit for the implementation of measures to protect
persons involved in criminal proceedings, which will require the creation of
a single center to coordinate decisions and actions of pre-trial investigation
and competent personnel policy.
Given the positive foreign experience in the implementation of protection
programs for witnesses and other participants in criminal proceedings,
44
Mykhailo Huzela, Iryna Shulhan, Ruslan Shekhavtsov, Andrii Khytra y Maryna Kukos
Security of the participants in the criminal process: procedural and criminological aspects
arguments are presented for the introduction of appropriate protection
programs in Ukraine, which would be an eective means of improving
crime, giving law enforcement agencies greater powers to create special
conditions for security.
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Esta revista fue editada en formato digital y publicada
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