1. Except as provided for in Artricle 150, upon receipt of the written motion, the competent judge must schedule a date and time for a closed protective mea- sures hearing to request further information from the prosecutor, the defense, and the potential witness under threat or vulnerable witness.
2. Where the motion for protective measures has been submitted by the defense, the defense, the prosecutor, and the potential witness under threat or vulner- able witness must be informed of the date and time of the hearing under a sealed notice of a protective measures hearing in accordance with Article 27. The prosecutor must be present at the protective measures hearing.
3. Where the motion for protective measures has been submitted by the prose- cutor or a potential witness under threat or vulnerable witness, the prosecu- tor and the witness must be informed of the date and time of the hearing under a sealed notice of a protective measures hearing in accordance with Article 27. The defense may not be present at a hearing of a motion for protec- tive measures filed by the prosecutor or a potential witness under threat or vulnerable witness.
4. The protective measures hearing must be held in closed session and may include only the prosecutor, the defense, where applicable, the witness in question, and essential court and prosecution personnel.
5. Where a witness is examined at the protective measures hearing, he or she must make a solemn declaration under Article 247, 248, or 249. The compe- tent judge must issue the warning set out in Article 235. The competent judge must inform the witness of his or her right to be free from self-incrimination under Article 251.
6. The competent judge may grant a protective measures order where:
(a) the judge has verified that the witness concerned falls under the category of a witness under threat or a vulnerable witness as defined in Article 148, respectively;
(b) with regard to a witness under threat, the judge has verified that a credi- ble threat to the security of the witness or his or her family members exists. The threat must be substantiated by facts;
(c) with regard to a vulnerable witness, the witness is vulnerable as defined in Article 148;
(d) the judge is convinced that the potential witness under threat or vulnera- ble witness is a credible witness;
(e) the testimony of the potential witness under threat or vulnerable witness is important for the criminal proceedings; and
(f) the need to grant the protective measure in favor of the witness under threat or the vulnerable witness and the needs of the criminal investiga- tion are adequately balanced against the rights of the suspect or the accused.
7. Where the competent judge finds that the conditions set out in Paragraph 6 are met, the judge may make an order for protective measures, specifying: (a) the name of the person to whom the protective measures will apply,
unless the witness’s name is being temporarily withheld;
(b) the particular protective measures that will apply to the witness; (c) the duration of the application of the protective measures;
(d) that all persons with access to the protective measures order must not reveal the sealed order for protective measures;
(e) the consequences of revealing the contents of the sealed order for pro- tective measures, including potential prosecution under Article 200 of the MCC; and
(f) the name of the court in which the decision was issued and the name and signature of the competent judge.
8. The order for protective measures must be accompanied by a written and reasoned decision that must be released within a reasonable time after the order is made.
9. Where an order for protective measures is not granted, a written and rea- soned decision must be released within a reasonable time after the hearing on protective measures.
10. An order for protective measures and the written decision on protective mea- sures under Article 147(1)(a)–(e) must not contain any information that could lead to the discovery of the identity of the witness under threat or the vulner- able witness or the family of the witness.
11. An order for protective measures and a decision on protective measures must not reveal the existence of, or expose to serious risk, the operational security of ongoing and confidential police investigations.
12. An order for protective measures or the refusal of the competent judge to grant an order for protective measures may be appealed by way of interlocu- tory appeal under Article 295.
Commentary
Paragraph 6:Paragraph 6 sets out in full the grounds that must be found for the com- petent judge to grant a witness protection order. Not only must the judge inquire into the credibility of the threat to a proposed witness under threat and the vulnerability of a potential vulnerable witness on the basis of substantiated facts, but also the judge must make a full inquiry into the credibility of the witness by questioning the witness at the hearing. The drafters of the MCCP had at a certain point considered whether a hearing on witness protection measures was required in every case. It was considered imperative that, with the exception of the temporary removal of the accused under Article 147(f), a hearing always be conducted, given the need to verify the credibility of the witness. Another element of the judge’s reasoning on whether or not to grant a witness protection measure is the balancing of the need to protect the witness and the needs of the criminal investigation with the rights of the suspect or the accused. This is a fundamental element in the determination of any measure of witness protection or witness anonymity because these measures impact upon the rights of the suspect or the accused.