Background
The role of witnesses and the evidence they provide in criminal proceedings is often crucial in securing the conviction of offenders, especially in respect of organized crime such as human trafficking. This tool presents the provisions of the Organized Crime Convention relating to the protection of witnesses (art. 24) and obstruction of justice (art. 23, subpara.(a)). The protection may include physical protection, domestic or foreign relocation, special arrangements for giving evidence and relo- cation agreements. Prosecuting offenders or their accomplices under criminal law for intimidating or threatening witnesses is another means of protecting witnesses from such acts.
Witness protection provisions of the Organized Crime Convention
According to article 24 of the Organized Crime Convention, States parties must take appropriate measures within their means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences covered by the Convention and, as appropriate, for their relatives and other persons close to them. These measures may include:
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• Establishing procedures for the physical protection of such persons, such as relo- cating them and permitting limitations on the disclosure of information concern- ing their identity and whereabouts
• Providing evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness
These requirements are mandatory, but only “where appropriate” and “within the means” of the State party concerned. States parties are also enjoined to consider entering into agreements or arrangements with other States for the relocation of witnesses (art. 24, para. 3).
This means that the obligation to provide effective protection for witnesses is lim- ited to specific cases or prescribed conditions where, in the view of the implement- ing State party, such means are “appropriate”. Officials might be given discretion to assess the threat or risks in each case and only extend protection where justi- fied by the assessment, for example. The obligation to provide protection also arises only where such protection is within the “means”, such as available resources and the technical capabilities, of the State party concerned.
The term “witnesses” is not defined, but article 24 limits the scope of witnesses to whom the obligations apply to “witnesses in criminal proceedings who give testi- mony concerning offences covered by this Convention, and, as appropriate, for their relatives or other persons close to them”. Witnesses can be either simple observers of a crime or victims of the crime. Witnesses can also be individuals who belonged to an organized criminal group or who committed a crime and then decided to col- laborate with the justice system.
Obstruction of justice
States parties are also required to address the question of “obstruction of justice” by creating an offence for situations where efforts are made to influence potential witnesses and others in a position to provide the authorities with relevant evidence. The obligation is to criminalize the use of both corrupt means, such as bribery, and coercive means, such as the use or threat of violence. States parties are required to criminalize the “use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in rela- tion to the commission of offences covered by this Convention” (art. 23, para. a). The use of force, threats and inducements for false testimony can occur at any time before the commencement of the trial, whether formal “proceedings” are in progress or not. Therefore, the term “proceedings” must be interpreted broadly to cover all official governmental proceedings, including pre-trial processes. States are required to apply this offence to all proceedings related to offences “covered by the Convention” and the Protocols.
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Interpreted narrowly, this would only apply where testimony is actually given, or when it is apparent that testimony will be given, although the requirement to pro- tect witnesses from “potential” retaliation may lead to a broader interpretation.
Extended protection
The experience of States that have established witness protection schemes suggests that a broader approach to implementing this requirement may be needed to afford effective protection to witnesses and ensure their cooperation with investigations and prosecutions. Witness protection schemes should consider extending protection in the following cases: (a) to all persons who cooperate with or assist in investiga- tions until it becomes apparent that they will not be called upon to testify; and (b) to persons who provide information that is relevant but not required as testimony or not used in court because of concerns for the safety of the informant or other persons.
Legislators may therefore wish to make witness protection provisions applicable to any person who has or may have information that is or may be relevant to the investigation or prosecution of an offence covered by the Convention, whether this is produced as evidence or not.
Protection programmes
Police witness protection programmes aim to prevent offenders or their accomplices from approaching and intimidating the witness. In some cases, the participation of witnesses in a witness protection programme will be absolutely necessary to guar- antee their safety. In other cases, protection measure may not be necessary at all. Police witness protection programmes require an enormous personal and psycho- logical adjustment on the part of participants. Wherever possible, effective psychoso- cial support should also be provided to them. Given the costs and the implication of such programmes on the daily lives of the witnesses involved, such programmes are usually restricted to serious crime, including organized crime.
Witness protection measures include, among other things, relocation of witnesses, change of identity, police escorts and financial and social assistance. Relocation includes the removal of the witnesses, possibly together with their families, from their place of living to a place where they are not easily recognized. Depending on the seriousness of the risk involved, relocation may be on a long-term basis or of a temporary nature, for example during criminal proceedings. Further, relocation might be necessary more than once, for example, if the witness or a family mem- ber makes a mistake that could lead to a heightened security risk or if a family member wants to leave the programme. Additional measures to prevent the trac- ing of protected witnesses through population registers, telephone books or vehicle registers might also be useful.
Witness protection programmes are expensive, involving costs for protection serv- ices, removals, temporary residences, economic subsistence, housing and medical
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services. In order to maintain effective witness protection programmes, States need to ensure that sufficient funding is available. Witnesses for the programme must be assessed for suitability and selected carefully. In many instances, the provision of other measures such as the installation of panic alarms in the home or place of business of witnesses and provision of mobile telephones, supplemented by daily contact by law enforcement officials or police escorts, may be considered appro- priate.
Persons close to witnesses, such as their family members or staff of specialized vic- tim support non-governmental organizations, may also face threats to their secu- rity. States should thus ensure that witness protection programmes can be extended to such persons.
Witnesses usually enter a witness protection programme by signing a written agree- ment, often called a memorandum of understanding or memorandum of agreement, which defines the obligations of the protected witness and of the protecting agency. Such agreements are codes of conduct rather than legally binding contracts.
The course and duration of witness protection programmes is substantially influ- enced by the progress of criminal investigations and court proceedings. In some instances (for example, Germany, Italy and the Netherlands), the protection can be extended through every phase of the investigation, prosecution and trial, and continue even after a conviction has been obtained. The termination of a person’s participation in the programme is typically determined by means of regular assess- ment of the danger that exists for the witness.
Legislation
Legislation to establish a witness protection programme usually establishes the authority of the agency responsible for organizing and providing protection serv- ices. The United Nations model witness protection bill provides a starting point for the development of the required legislation.
The Philippines’ Witness Protection, Security and Benefit Act provides protection, including relocation and limited disclosure or non-disclosure of information con- cerning the identity and whereabouts of protected persons, to witnesses and, as appropriate, their family members. For more information, please see:
http://www.doj.gov.ph/faqs_witness.html and http://www.chanrobles.com/republicactno6981.htm
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United Nations model witness protection bill
The aim of the model witness protection bill is to ensure that investigation and prosecution of serious criminal offences is not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination. Through a witness protection programme to be administered and maintained by a designated person or body, witnesses can be given protection and assistance to shield them from such recrimination. The dis- closure of information relating to the programme or witnesses participating in it is made an offence.
The model witness protection bill and commentary can be found on the UNODC website at: http://www.unodc.org/pdf/lap_witness-protection_2000.pdf http://www.unodc.org/pdf/lap_witness-protection_commentary.pdf
Lesson from experience in South Africa
Experience in South Africa reveals that a centralized, single witness protection agency in a government ministry (for example the Ministry of Justice) can offer a greater guarantee of effective witness protection and help prevent failures resulting from incompetence or corruption. Such a centrally organized and admin- istered agency should have its own budget, adequate funding, a central secure database, including data on the witnesses participating in protection programmes nationwide, and safe houses. It is also advisable to set up a specialized police unit responsible for carrying out the protection measures, because the use of normal police units on an ad hoc basis can compromise the integrity of the programme and prevent it from accumulating the necessary expertise.
Lesson from experience in the Philippines
In the Philippines, the Department of Justice is in charge of coordinating the national witness protection programme; other governmental agencies are also involved, depending on their respective mandates and responsibilities, in several aspects of the programme. An interdepartmental memorandum of understanding was developed to delineate the respective responsibilities of the various depart- ments: the Health Department is to assist the Justice Department in providing wit- nesses with medical treatment and hospitalization; the Department of Labour and Employment helps witnesses to secure employment and obtain a means of liveli- hood; the Department of Social Welfare and Development provides assistance to witnesses with respect to skills training services, crisis intervention and help in dealing with traumatic reactions; and, the National Bureau of Investigation and the National Police are responsible for providing personal safety for the witness and her or his family. This coordinated approach involves all relevant governmen- tal actors and thereby covers the many aspects of witness protection programmes over and above physical protection.