[People] Comparative Study of the WITNESS PROTECTION PROGRAMMES of Canada, South Africa and the Philippines – by Dr. Renato Mabunga

(This is a shortened version of the research commissioned by the Association of Major Religious Superiors in the Philippines (AMRSP) to provide guidance and make better its Sanctuary Program. This is an exposé of selected countries Witness Protection Programmes (WPP) in an attempt to draw some lessons to further protection of witnesses and their families from eventual retaliation of antagonistic elements of society.)

Introduction:

As the term suggests “witness protection programme” is a security mechanism provided for threatened witnesses and their families or other related persons or any person involved in the justice system whose lives are endangered due to testimonies they are willing to divulge to shed light to a crime in order to propel the rule of law. The idea behind being in this program is to protect vital informants and to ensure fair and successful prosecution. This is propelled by the assumption that “person who committed the crime is usually the type of person who will take retribution against the party who is willing to tell what they seen” (Lopez, 2008). This means provision of protection before, during and to some extent after a trial.

Usually, witness protection is required in cases against organized crime. This is so after law enforcement’s or professional evaluation that witnesses are more likely at risks of intimidation or threats by supporters of a defendant or accused. However, there is much likely to see when the accused of a crime is part of the law enforcement institution. There is a need to establish effective protection mechanisms alongside building the capacity and ensuring the integrity of those who implement the programme.

In the Consolidated Response (07-008) of the International Network to Promote the Rule of Law or INROL (Toomey, 2007), it classified protection measures as Short-term Measures and Longer-term Measures to Protect Witnesses. Both measures detail out legislative and regulatory requirements in determining who and when to protect; strategies on how to protect; the use of procedural and formal witness protection. Short-term measures are those that need temporary protection while the case is under investigation. Long-term measures are those that need total relocation and change of identity even as the trial has ended because of the gravity of the case and its repercussions to the witnesses and their families or other related persons.

Among the many features of witness protection range from protection of witness’ identity during investigation and trial, assigning security detail, court injunctions and retraining orders, provision of safe houses, allotment of monthly allowances, provision of new identity and the other covert plans and made-up stories for protection. All these necessitate the effective functioning of the all the pillars of justice system. These also require persons under the program to prepare from temporary to total dislocation both physically and economically; emotional and psychological detachments from members of the family and friends; trauma and distrust – which are all detrimental if not handled properly not only to the witnesses but more so to their families especially the children.

International Framework and Standards on Witness Protection:

There are a number of international standards pertaining to protection of witnesses which serve as basis in the drafting of national or local witness protection program of various countries. Among them are:

* The United Nations Convention against Transnational Organized Crime – adopted by the General Assembly thru resolution 55/25 of 15 November 2000. In its Article 24, it mandated all parties to the convention to “take appropriate measures within its means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences… [including], as appropriate, their relatives and other persons close to them.” This “includes without prejudice to the rights of the accused, including the right to due process.” Specifically, it calls for the establishment of procedures “for the physical protection of such persons, such as, to the extent necessary and feasible, relocating them and permitting, where appropriate, non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of such persons”; provision of “evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.” In so far as the case is a transnational crime, the convention recommends that the “States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons” referred to as witnesses under witness-protection programme.

In Article 25 of the same document, the convention states that such appropriate measures for the protection of witness covers assistance such as compensation and restitution for victims of offenses.

* The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power – adopted by the UN General Assembly thru resolution 40/34, annex on November 29, 1985. The assembly approved the said declaration “based on the conviction that victims should be treated with compassion and respect for their dignity and that they are entitled to prompt redress for the harm that they have suffered, through access to the criminal justice system, reparation and services to assist their recovery. The Declaration recommends measures to be taken on behalf of victims of crime at the international, regional and national levels to improve access to justice and fair treatment, restitution, compensation and assistance. It also outlines the main steps to be taken to prevent victimization linked to abuse of pow er and to provide remedies for the victims.” (UNOCCDP, 1999).

“Victims” are defined in the declaration as those who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are violations of national criminal laws or of internationally recognized human rights instruments (UN general Assembly, 1985; UNOCCDP, 1999). The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization regardless of sex, religion, race color, language, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability.

It mandates the State Parties to the declaration to ensure judicial and administrative mechanisms through formal or informal procedures to enable expeditious and fair disposition of cases and execution of orders or decrees granting awards to victims. The responsiveness of these processes to the needs of victims should be facilitated by “providing proper assistance to victims throughout the legal process”; and, “taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation” (Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power #6 C & D, 1985).

* The UN Convention against Corruption – In 2000, the United Nations General Assembly recognized the need for an effective legal instrument against corruption and thus adopted resolution 58/4 after a series of negotiation on October 31, 2003 which was entered into force in December 2005 in accordance with Article 68 of the Convention.

The Convention against Corruption mandates all State Parties to “take appropriate measures in accordance with their domestic legal system and within their means to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences established in accordance with the Convention and, as appropriate, for their relatives and other persons close to them” (Article 32). These measures for protecting witnesses shall not prejudice the rights of the defendants including the right to due process; and shall be considered mutatis mutandis. These include the physical protection of person, relocation, secrecy of information, provision of evidentiary rules to ensure the safety of witnesses and the granting of immunity from prosecution in accordance w ith the fundamental principles of domestic laws. (Article 32 (2 &5); Article 37).

* The UN Economic and Social Council Resolution 2005/20 – Adopted by the Council during its 36th Plenary meeting in July 2005, the resolution pertains to the Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime as a useful framework in enhancing protection of child victims and witnesses in the criminal justice system and in developing legislation, procedures, policies, and practices relating to children who are victims of crime or witnesses in criminal proceedings.

Among the rights sought to be protected and established by this guidelines include among others are:

the right to be treated with dignity and compassion;
the right to be protected from discrimination;
the right to be informed;
the right to be heard and to express views and concerns;
the right to effective assistance;
the right to privacy;
the right to be protected from hardship during the justice process;
the right to safety;
the right to reparation; and,
the right to special preventive measures (UN Res. 2005/20, 2005).

Various International Tribunals or Courts also have ensured that legal provisions on witness protection are incorporated in their statutes.

* Article 22 and Article 21 of the Statute of the International Criminal Tribunal for the former Yugoslavia and the Statute of the International Tribunal for Rwanda, respectively state that, “the International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.”

* Articles 43(6) of the Rome Statute of the International Criminal Court states that “the Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.”

Article 68 of the same statute states:

1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counseling and assistance as referred to in article 43, paragraph 6.

5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

* Article 16(4) of the Statute of the Special Court for Sierra Leone provides that: “the Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance for witnesses, victims who appear before the Court and others who are at risk on account of testimony given by such witnesses. The Unit personnel shall include experts in trauma, including trauma related to crimes of sexual violence and violence against children.”

* The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea also provides that:

The Extraordinary Chambers of the trial court shall ensure that trials are fair and expeditious and are conducted in accordance with existing procedures in force, with full respect for the rights of the accused and for the protection of victims and witnesses. If necessary, and if there are lacunae in these existing procedures, guidance may be sought in procedural rules established at the international level.

Suspects who have been indicted and arrested shall be brought to the trial court according to existing procedures in force. The Royal Government of Cambodia shall guarantee the security of the Suspects who appear voluntarily before the court and is responsible in taking measures for the arrest of the Suspects prosecuted under this law. Justice police shall be assisted by other law enforcement elements of the Royal Government of Cambodia, including its armed forces, in order to ensure that accused persons are brought into custody immediately.

Conditions for the arrest and the custody of the accused shall conform to existing law in force.

The Court shall provide for the protection of victims and witnesses. Such protection measures shall include, but shall be not limited to, the conduct of in camera proceedings and the protection of the victim’s identity. (Art. 33)

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