1. Introduction
1.1. Procedure
1. The motion for a resolution on “Witness protection
as an indispensable tool in the fight against organised crime and
terrorism in Europe” (
Doc.
12841) was transmitted to the Committee on Legal Affairs and
Human Rights on 23 April 2012.
At
its meeting in Paris on 19 March 2013, the committee appointed me
as rapporteur, following the departure from the Parliamentary Assembly
of the previous rapporteur, Mr Jean-Charles Gardetto (Monaco, EPP/CD).
In March 2014, to take stock of the current legal status and practice
within Council of Europe member States on this matter, I sent out
a questionnaire through the European Centre for Parliamentary Research
and Documentation (ECPRD). On 27 May 2014, at its meeting in Helsinki,
the committee held a hearing with three experts:
- Mr Christian Bauer, Project
Coordinator for Witness Protection, Europol, The Hague;
- Mr Gábor Ihász, Head of Department, Riot Police, Witness
Protection Unit, Budapest;
- Mr Frank Debije, Chief Inspector, National Police of the
Netherlands.
1.2. The increasing
role of witness protection measures in combating organised crime
and terrorism
2. The motion for a resolution rightly stresses the
need “to study carefully the question of the protection of witnesses
as an indispensable tool in the fight against organised crime and
terrorism in Europe”. For certain types of crime (for example, rape),
the victims themselves are often the only witnesses. The impact
of crime on its victims can be far-reaching and devastating, leaving
great physical and emotional scars.
It may render these individuals
particularly vulnerable to perceived or actual threats and intimidation
against themselves or people close to them and thus render them
reluctant to testify.
It
may also lead to so-called “secondary victimisation”, involving
a lack of understanding of the suffering of victims making them
feel isolated and insecure.
3. There is growing awareness about the importance of witness
testimony in securing convictions in criminal trial proceedings.
As such, reliance on witness testimony
is crucial to the proper functioning of the criminal justice system
in any State upholding the rule of law. Aside from obvious human
rights-based incentives for protecting victims and witnesses of
serious crimes, such protection is indispensable in order to vanquish
organised crime and terrorism through the criminal justice system.
This is because of the critical
role of witness testimony in effectively investigating and prosecuting
these crimes and thereby dismantling powerful criminal structures
that pose a serious threat to the rule of law in many countries.
In this context, there is no difference between organised crime
and terrorist organisations, as both may seriously obstruct justice
by intimidating, harming or bribing witnesses.
4. Globalisation has opened the gateway to new challenges, such
as the increasing phenomenon of criminality with a strong transnational
reach, including organised crime and terrorism. In fact, the dramatic increase
in the global prevalence of organised crime over recent years has
become a major area of international concern. For instance, the
United Nations Security Council recently noted that “in a globalized society,
organised criminal groups and networks, better equipped with new
information and communication technologies, are becoming more diversified
and connected in their illicit operations, which in some cases may aggravate
threats to international security”.
In these circumstances,
more and more witnesses requiring protection are not only the victims
but are also the criminals (so-called “collaborators of justice”
or
pentiti).
5. The Assembly has recently examined the question of witness
protection in the Balkans.
Resolution
1784 (2011) on the protection of witnesses as a cornerstone for
justice and reconciliation in the Balkans stresses that witnesses
who stand up for truth and justice are owed reliable and durable
protection. Without it, justice and reconciliation in the Balkans
cannot be achieved. This issue is becoming more important in view
of the recent developments in Kosovo*,
where,
at the end of April 2014, the Kosovo Assembly decided to create
a special court to investigate war crimes and claims concerning
trafficking in organs harvested from Serbs during the 1998-99 war
in the region.
6. As the Assembly points out in its
Resolution 1784 (2011), witness protection and support must go hand in hand.
Witness support can range anywhere from logistical to psychological
assistance throughout the entire length of time that a witness is
implicated in the criminal trial process. However, protection against
retaliation can be required far beyond the trial process, sometimes
for the witnesses’ and their families’ entire lives.
7. Shortcomings in concrete, reliable and durable witness protection
measures are not limited to a specific category of crime (war crimes,
however grave) or to a specific region (Balkans). Unfortunately,
many countries, including a number of Council of Europe member and
observer States, continue to provide insufficient witness protection
and support measures. While many States have some form of witness
protection measures, many are not adequately implemented in practice.
There appears to be great divergence in
the level of protection, the crimes such protection measures are
granted for, and the type of government body administering witness protection
programmes (police, other executive bodies or the judiciary).
This
report will seek to examine the issue of witness protection in the
specific and complex context of organised crime and terrorism and,
relying on existing international instruments, to submit some proposals
on how these shortcomings could be addressed.
2. Defining
the parameters
2.1. Witnesses
8. T he Committee of Ministers has defined a witness
as “any person who possesses information relevant to criminal proceedings
about which he/she has given and/or is able to give testimony (irrespective
of his/her status and of the direct or indirect, oral or written
form of the testimony, in accordance with the national law)”.
As stipulated in the United Nations
Office on Drugs and Crime’s
Good Practices
for the Protection of Witnesses in Criminal Proceedings involving
Organized Crime,
the person giving testimony can be
an informant, a witness, a judicial officer, an undercover agent
or other.
9. Suspects and defendants called “collaborators of justice”
also play a significant role in providing testimony leading to the
investigation and prosecution of crimes. Committee of Ministers
Recommendation Rec(2005)9 on the protection of witnesses and collaborators
of justice defines a “collaborator of justice” as “any person who
faces criminal charges, or has been convicted of taking part in
a criminal association or other criminal organisation of any kind,
or in offences of organised crime, but who agrees to co-operate
with criminal justice authorities, particularly by giving testimony
about a criminal association or organisation, or about any offence
connected with organised crime or other serious crimes”. In relation
to such persons, co-operation is encouraged and compensated with
a significant reduction of prison sentences or sometimes even by
immunity from prosecution.
2.2. Organised crime
10. Despite the rapidly growing prevalence of transnational
organised crime, and the grave threat to international security,
this area of criminal activity is a phenomenon that is not well
understood to date.
11. Although many international instruments make some form of
reference to the increasing threat of organised crime, the United
Nations Convention against Transnational Organized Crime (UNTOC)
and the Protocols thereto
is the only international
convention targeting this criminal activity directly and comprehensively.
It establishes, for the very first time, a framework for preventing
and fighting organised crime, and laying out a detailed international
co-operation model.
While the UNTOC does not provide
a precise definition of “transnational organised crime” per se,
it does elaborate on which type of criminal activity may fall within
its ambit. The UNTOC and its three protocols criminalise activity
ranging from the mere participation in an organised criminal group
(Article 5) to crimes committed by these groups, such as money laundering
(Article 6), corruption (Article 8), obstruction of justice (Article
23), trafficking in persons, especially women and children (additional
Protocol), smuggling of migrants (additional Protocol), and the
illicit manufacturing of and trafficking in firearms, their parts
and components and ammunition (additional Protocol). According to
the United Nations Office on Drugs and Crime (UNODC), the “guardian
of the convention”, the lack of a precise definition is intentional
so as to allow for “a broader applicability of the Organized Crime
Convention to new types of crime that emerge constantly as global,
regional and local conditions change over time”.
The
UNODC’s
Transnational Organized Crime
Assessment pertinently demonstrates the ever-evolving
nature of transnational organised crime and gives an assessment
of new forms of such crime, such as cybercrime, maritime piracy,
environmental resource trafficking, product counterfeiting, etc.
12. Despite the lack of a precise definition of the actual forms
of this crime, “transnational organised crime” can be understood
as referring to illicit activity with strong financial incentives
carried out in a highly systematic fashion by networks of individuals
across State borders. There is currently some debate about whether solutions
should focus on the group of individuals engaged in illicit activities
or on the illicit activities themselves – and the market dynamics
– in which groups of individuals are implicated.
While
a proper analysis of this issue is beyond the scope of my mandate,
suffice it to say that the investigation and prosecution of organised crime
is very complicated due to the nature of organised crime as an ever
evolving, expanding and highly complex global phenomenon.
2.3. Terrorism
13. Terrorism and organised crime share many elements
and there is inevitably some overlap in the activities of groups
involved in both areas of criminal activity. Terrorist groups often
fund their activities by robberies or trafficking in drugs or human
beings. Sometimes the general criminal activities end up overtaking the
original ideological objectives.
These transformations
of criminal organisations over time from being ideologically-driven
to being greed-driven also generate opportunities for investigators
to recruit inside informers or even witnesses from inside the organisation
who are disillusioned by this transformation.
14. Much like organised crime, certain actors of modern-day terrorism
have highly organised multifarious networks and a strong transnational
reach and the investigation and prosecution of the terrorist and
other crimes they commit poses complex problems.
15. Unlike the case of organised crime, a large number of international
and regional legal instruments exist to deal with terrorist offences.
Most
relevant in this context is the Council of Europe Convention on
the Prevention of Terrorism
(CETS
No. 196), which recalls “the obligation of all Parties to prevent
such offences and, if not prevented, to prosecute and ensure that
they are punishable by penalties which take into account their grave
nature”.
Significantly, this convention provides
a comprehensive framework for member States regarding “effective
measures to prevent terrorism” at the national level (Article 3)
and as regards international co-operation (Article 4).
16. The convention does not define a “terrorist offence” explicitly.
Instead, it refers to the definitions contained in 11 major international
instruments, which set out a range of terrorist offences (unlawful
seizure of aircraft, unlawful acts against the safety of civil aviation,
crimes against internationally protected persons, taking of hostages,
use of nuclear material, terrorist bombings, etc.) as well as the
financing of terrorism.
17. Much more relevant, however, than the semantics of the precise
definition, is an understanding of the general nature of terrorism
as a serious crime on a mass scale (often involving many victims),
carried out in a systematic manner by highly organised and complex
networks of individuals across national borders. Terrorism crimes
are among the most complex to prevent, investigate and prosecute
because they are elusive, unpredictable, and are for the most part
carried out by highly structured underground terrorist networks.
2.4. The particular
complexity of witness protection in organised crime and terrorism
cases
2.4.1. The closed nature
of organised crime and terrorism networks
18. The importance of witness testimony in organised
crime and terrorism cases is based largely on the “closed nature”
of criminal and terrorist networks and the fact that traditional
investigative methods are not adequate to respond to these types
of criminal activity. This issue is specifically dealt with by Committee
of Ministers Recommendation Rec(2005)10 on
“special
investigation techniques” in relation to serious crimes including
acts of terrorism.
In other words, dismantling
such groups requires knowledge about actors and activities (including
financial), which is difficult to obtain due to the secrecy and
obscurity in which many of these networks operate.
As the Committee of Ministers
has underscored in its Recommendation Rec(2005)9, in the areas of
organised crime and terrorism, witnesses are subjected to an increased
risk of retaliation or intimidation, and are thus particularly vulnerable,
such that obtaining reliable information and testimony can prove
extremely difficult. Often so-called “collaborators of justice”
or “insider witnesses” (who are intimately familiar with the inner
workings of the groups) are in the best position to adequately provide
such information, or are even the only ones who can. At the same
time, they can be easily identified as “traitors” due to the limited number
of people who have access to relevant information.
2.4.2. The transnational
aspect
19. One of the difficulties in investigating and prosecuting
organised crime and terrorism offences is their transnational/cross-border
dimension. The repercussions of these crimes are often vast and
their effects are felt across the entire globe. In the case of organised
crime, for instance, illicit goods coming from one continent can
be trafficked across a second so as to be marketed in a third.
Transnational organised crime infiltrates nearly
every aspect of human existence, permeating State institutions,
business and politics, generating corruption and impeding economic
and social development.
Although
perhaps not quite as omnipresent as other organised crime, terrorist
offences also transcend national borders and, much like “classic”
organised crime, are carried out by highly structured inter-connected
networks at local, regional and international levels.
20. Given the global scale of organised crime and terrorism, and
the strong links between criminal and terrorist networks across
State borders,
coupled
with insufficient international co-operation on crucial matters regarding
witness protection, the likelihood that witnesses will be discouraged
from testifying is high. One only has to think of criminal organisations
as powerful as Italian or Kosovar Mafia groups or certain terrorist movements
linked to Al’Qaida, with highly complex, pluralistic and diversified
structures and a transnational reach, to understand such reluctance
on the part of a potential witness/collaborator of justice. The
UNODC’s
Good Practices manual
underscores that while witness protection measures exist in theory,
their implementation is often insufficient, notably as regards cross-border
co-operation for issues as important as the change of a witness’
identity and relocation.
3. Witness protection
and support
3.1. Scope
21. Rules on the protection of witnesses and those who
participate in criminal proceedings have been established recently.
Interestingly, countries that pioneered legislation in this field
established protection measures long before, for example Belgium
did so in 1921 in relation to offences related to drugs, and Italy
in the 1970s.
22. Witness protection can include a great number of measures
at any stage of the trial process (that is, before, during and after
the trial). Measures at the pre-trial stage can include temporary
placement of witnesses in safe houses or imposing injunctions against
accused persons to prevent intimidation of witnesses; measures during
trial can include the removal of defendants from the court room
or, in extreme cases, in camera sessions and reliance on voice or
face distortion technology, or even anonymous testimony through
a pseudonym.
Following
the trial, witness protection measures can include changing the
witness’ identity or relocating him/her to an unknown place within
the same country or to another country altogether. Given the substantial financial
cost for the State and the upheaval for the witness and his/her
family, however, these witness protection measures (as part of a
formally established covert witness protection programme) are resorted
to only in exceptional circumstances.
It is precisely in the fight against organised
crime and terrorism that such exceptional circumstances arise most
frequently, as robust and durable witness protection is often the
only chance to dismantle powerful transnational criminal networks
by prosecuting the “command level”.
23. One can distinguish procedural and non-procedural protective
measures. Procedural protective measures are those which operate
within the scope of criminal procedure and affect its rules (for
example, legal assistance to threatened witnesses, full or partial
admission of anonymous witnesses, voice/face distortion, telephone-
or video-conference, etc.).
They are
usually decided by the judge,
ex officio or
at the request of the prosecutor and/or investigating police forces.
Non-procedural protective measures can be defined as those “which
do not affect the rules of criminal procedure and have no influence
on the rights of the defence (bodyguards, change of identity intended
to operate outside the trial, subsequent change of address and profession,
economic and psychological assistance, etc.)”.
According
to the Council of Europe’s report on “Terrorism: Protection of Witnesses
and Collaborators of Justice”, the so-called “witness protection programmes”
conceived for witnesses/collaborators of justice and their relatives
fall within this category. These specific measures will be discussed
in turn below.
3.2. International legal
instruments
24. The UNTOC contains provisions concerning protection
of witnesses and victims (Articles 24-25), as well as measures to
enhance suspects’ and co-defendants’ co-operation with law-enforcement
authorities (Article 26). In particular, its Article 24 Section
1 stipulates that “[e]ach State Party shall 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 covered by this Convention
and, as appropriate, for their relatives and other persons close
to them”. Such measures may include,
inter
alia, those aimed at guaranteeing the physical protection
of witnesses as well as evidentiary rules permitting witness testimony
to be given in a manner that ensures the safety of the witness (Article
24, Section 2). Similar provisions on witness protection are contained
in the
United Nations
Convention against Corruption (see in particular its Article 32).
25. The Council of Europe has been actively promoting witness
protection standards among its member States. Specific rules concerning
witness protection have been included in the Council of Europe Criminal
Law Convention on Corruption (ETS No. 173) (Article 22) and the
Convention on Action against Trafficking in Human Beings (CETS No.
197) (Article 28). Moreover, the Second Additional Protocol to the
European Convention on Mutual Assistance in Criminal Matters (ETS
No. 182)
regulates international
co-operation concerning hearings by videoconference (Article 9)
and telephone conference (Article 10). As regards non-procedural
protective measures, its Article 23 stipulates that “where a Party
requests assistance under the Convention or one of its Protocols
in respect of a witness at risk of intimidation or in need of protection,
the competent authorities of the requesting and requested Parties
shall endeavour to agree on measures for the protection of the person
concerned, in accordance with their national law”. The obligation
stemming from this article (“endeavour to agree”) remains somewhat
vague as regards the intended practical effect.
26. Moreover, the Committee of Ministers has issued a number of
recommendations: Recommendation No. R (97) 13 concerning intimidation
of witnesses and rights of defence, Recommendation Rec(2001)11 concerning
guiding principles on the fight against organised crime,
which calls for witness protection
at all levels of the criminal trial process, and Recommendation
Rec(2005)9 on the protection of witnesses and collaborators of justice,
which calls on member States to enhance witness protection measures,
urging increased international co-operation in this area. The latter
points out a number of legislative and practical measures that should
be implemented to ensure that “witnesses and collaborators of justice
may testify freely and without being subjected to any act of intimidation”,
such as implementing adequate protection measures against witnesses
and collaborators of justice and people close to them and punishing
acts of intimidation, where necessary.
27. The European Union has given some guidance to its member States
concerning witness protection in cases of organised crime.
It has considered harmonising national legislation
in this area, but the European Commission did not support this idea
in its assessment study of 2007.
In the meantime, practical co-operation
between member States has been developed through its law-enforcement
agency Europol (European Police Office), which, since 2000, has
co-ordinated the European Liaison Network, composed of heads of
national witness protection units.
In
2013, Europol has also elaborated its
European
Handbook on Witness Protection. Common Criteria and Principles,
which provides
guidance to States on how to create or adapt their national witness
protection programmes. Some of its provisions relate to the transnational
elements of such programmes.
3.3. The human rights
perspective
28. Under the European Convention on Human Rights (ETS
No. 5, “the Convention”), the rights of witnesses in criminal proceedings
have consistently been balanced against those of the defendants,
as guaranteed by Article 6 of the Convention,
and in particular its Article
6.3.
d, which provides that
everyone charged with a criminal offence has the right “to examine
or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions
as witnesses against him”. The term “witness” has an autonomous
meaning in the Convention system; regardless of classifications
under national law,
it includes, amongst others, co-accused,
victims
and
expert witnesses.
Article 6.3.
d of
the Convention requires that the accused should be given an adequate
and proper opportunity to challenge and question a witness against
him, either when that witness makes his statement or at a later
stage of proceedings. Any measures restricting the rights of the
defence should be strictly necessary; if a less restrictive measure
can suffice then that measure should be applied.
According
to the European Court of Human Rights (“the Court”), “the admissibility
of evidence is primarily a matter for regulation by national law
and … it is for the national courts to assess the evidence before
them”.
The Court’s role consists not in assessing
whether statements of witnesses were properly admitted as evidence,
but “rather to ascertain whether the proceedings as a whole, including
the way in which evidence was taken, were fair”.
The
handicaps suffered by the defendant should be sufficiently counterbalanced
by the procedure followed by the judicial authorities.
29. The Court has examined numerous cases concerning depositions
by anonymous witnesses and it does not preclude reliance on them.
However, the applicant (defendant) should
not be prevented from testing the reliability of such witnesses.
As stressed in the judgment
Birutis and
Others v. Lithuania, in which the Court found a violation
of Article 6 paragraphs 1 and 3.
d,
no conviction should be based either
solely or to a decisive extent on anonymous statements.
30. Despite the fact that the Court does not explicitly require
that the interests of the witnesses, including the victims, be
taken into account, their life, liberty, security or other interests
coming within the ambit of Article 8 (protection of private and
family life) may be at stake. Since these rights/interests are protected
by other (than Article 6) substantive provisions of the Convention,
this means that States “should organise their criminal proceedings
in such a way that those interests are not unjustifiably imperilled”.
That
is why, for example, in the case of
R.R.
and Others v. Hungary, which concerned the removal of
five applicants (a man accused of participation in a drug-trafficking
mafia from Serbia, his wife and their three children) from a witness
protection scheme following a breach of its conditions by the “collaborator
of justice”, the Court found a violation of Article 2 of the Convention
(right to life). It held, in respect of the four applicants – the
perpetrator’s wife and three minor children – that there existed
an identifiable risk of life-threatening vengeance from criminal
circles and that the authorities had failed to address and avoid
such a risk; the availability of an emergency phone number and the
occasional visits by police officers were not satisfactory measures
in this respect. Interestingly, the Court also considered that adequate
protection, including proper cover identities if necessary, would
need to be guaranteed to the four applicants by the State in order
to satisfy their obligations under Article 46 of the Convention
concerning implementation of Court judgments (so-called “individual
measures”). The judgment is now pending for execution before the
Committee of Ministers: at its 1 179th DH meeting in September 2013 and
its 1 208th DH meeting in September 2014, the Committee of Ministers
considered that the information provided so far by the Hungarian
authorities was insufficient to conclude that the applicants had
been provided adequate protection.
4. Witness protection
programmes
31. The first witness protection programmes (WPP) were
established in the United States in the 1970s in the context of
the fight against Italian-American mafia groups and have served
as a model for other countries. Secret and permanent relocation
of witnesses and their families, often coupled with identity change,
constitutes its core element.
The United Nations Office on Drugs
and Crime defines WPPs as “formally established covert programme(s)
subject to strict admission criteria that [provide] for the relocation
and change of identity of witnesses whose lives are threatened by
a criminal group because of their co-operation with law- enforcement
authorities”.
32. Committee of Ministers Recommendation Rec(2005)9 of the defines
a “protection programme” as a “standard or tailor-made set of individual
protection measures which are, for example, described in a memorandum
of understanding, signed by the responsible authorities and the
protected witness or collaborator of justice”. The report “Terrorism:
Protection of Witnesses and Collaborators of Justice” specifies
that the implementation of a protection programme might be governed
either by a contract (less frequently; on this basis, the protected
person can make representations and appeal to a judge or another
authority if he/she considers that his/her rights have been jeopardised)
or a memorandum of understanding (a code of conduct not giving rise
to directly enforceable rights).
33. Recommendation Rec(2005)9 contains a number of indications
on the adoption and implementation of protection measures and programmes
(see its paragraphs 10-28). Its paragraph 11 explicitly stipulates
that “no terrorism-related crimes should be excluded from the offences
for which specific witness protection measures/programmes are envisaged”.
Paragraphs 12 and 13 specify the main criteria that should be taken
into account when deciding to adopt such measures: involvement of
the person to be protected in the investigation and/or in the case;
relevance of the contribution; seriousness of the intimidation;
willingness and suitability to being subject to protection measures
or programmes; and the availability of other evidence. Proportionality
between the nature of the protection measures and the seriousness
of the intimidation of the witness/collaborator of justice should
be ensured (paragraph 14). Although innocent witnesses and collaborators
of justice subjected to the same kind of intimidation should be entitled
to similar protection, any protection measures concerning them should
take into account the particular characteristics of the matter and
the individual needs of the person(s) to be protected (paragraph
15).
34. Paragraph 22 of the recommendation specifies that “where appropriate,
witness protection programmes should be set up and made available
to witnesses and collaborators of justice who need protection. The
main objective of these programmes should be to safeguard the life
and personal security of witnesses/collaborators of justice, and
people close to them, aiming in particular at providing the appropriate
physical, psychological, social and financial protection and support”.
35. As regards protection programmes implying dramatic changes
in the private life of the protected person (such as relocation
and change of identity), paragraph 23 of the recommendation indicates
that they should be applied to witnesses and collaborators of justice
who need protection beyond the duration of the criminal trials where
they give testimony. Such programmes may last for a limited period
or for life; they should be adopted only if no other measures are
deemed sufficient to protect the witness/collaborator of justice
and persons close to them. They require the informed consent of
the protected person and an adequate legal framework (paragraph
24).
36. The recommendation also addresses some criteria concerning
the staff dealing with the implementation of protection measures
(paragraph 28): it should be afforded operational autonomy and should
be involved neither in the investigation nor in the preparation
of the case where the witness/collaborator of justice is to give evidence.
On the one hand, an organisational separation between these functions
is highly recommended, on the other hand, an adequate level of co-operation/contact
with or between law-enforcement agencies should be ensured in order
to successfully adopt and implement protection measures.
37. The “
White
Paper on Transnational Organised Crime” recently published by the European Committee on Crime
Problems (CDPC)
(hereinafter “the White Paper”)
deals in detail with the implementation of witness protection programmes
and collaboration of co-defendants and incentives for co-operation.
In a general manner, this document concludes that there are enough
legal structures in place and that the main problems concerned their
implementation. It deplores, however, the lack of updated studies
and statistics about exact figures on the number of convictions
based on statements made by protected witnesses.
38. The White Paper points out the need to separate witness protection
agencies from investigative and prosecutorial units and highlights
three characteristics that a witness protection agency should have:
co-operation with law enforcement agencies; independence of the
organisational branch of the agency from that which ensures confidentiality
of the witness; and the above-mentioned need for independence from
the investigation/prosecution agencies. It also emphasises the voluntary
character of the consent of the protected person and notes that
no legal rights arise from protection contracts and that in some
cases protected persons do not even receive a copy of the contract,
for security reasons. The minimum length of the witness participation
in a protection programme is two years and the average duration
is between three and five years. The White Paper also states the
need to recognise pre-trial statements as evidence in certain circumstances in
order to protect the witness without inhibiting the functioning
of justice.
39. The White Paper also focuses on incentives for the co-operation
of co-defendants in criminal proceedings. Offering protection from
retaliation and intimidation for this category of persons is often
not sufficiently motivating. Other “advantages” – such as a mitigated
sentence, entering into an agreement or being granted immunity from
prosecution – could be more convincing. UNTOC encourages its States
Parties to consider providing for the possibility of mitigating
the punishment of co-accused co-operating in the investigation or
prosecution (“in appropriate cases”) or granting immunity (“in accordance
with fundamental principles of its domestic law”) from prosecution
to “a person who provides substantial co-operation in the investigation
or prosecution” (see Article 26, Sections 2 and 3).
40. The authors of the White Paper rightly point out that most
member States of the Council of Europe have in their Criminal Codes
generic provisions concerning mitigation of punishment. Usually,
the mitigating of a sentence is left to the discretion of the court
and it depends not only on the degree of the co-defendant’s co-operation,
but also on the seriousness of the crime and the guilt of the accused.
However, these generic provisions are not always adapted to cases
of transnational organised crime and only a few member States have
specific provisions on plea bargaining or pre-judicial co-operation
(for example Azerbaijan, Estonia, Switzerland and the United Kingdom).
As regards immunity from prosecution, the White Paper notes that several
member States do not provide for such a possibility in case of organised
crime offences (for example Bulgaria, Finland or Switzerland), despite
the fact that relevant international instruments advocate this solution.
41. As stressed at the hearing in Helsinki in May 2014 by one
of our experts, Mr Bauer, witness protection programmes have become
an important tool in combating organised crime and terrorism in
Europe since the 1990s, when Germany established a witness protection
programme. Since then, they have become a commonly agreed tool in
the 28 European Union member States, even though there is still
room for improvement in some countries. As pointed out by Mr Debije,
the first witness protection unit in the Netherlands was established
in 1995 and it now deals with over 400 protection programmes. Over
the years, as the fight against organised crime and terrorism has
intensified, the character of protected witnesses has changed and the
number of perpetrators of crime protected under the programmes has
increased. While co-operating with the police, collaborators of
justice often tended to manipulate its staff and that was why witness
protection schemes had to be reshaped over the last few years, by
including a psychosocial perspective. Thus, the Dutch witness protection
unit focuses on training its staff on the psychological aspects
of witness protection and supports research in this area. A study
carried out in the Netherlands revealed, amongst others, that nearly 80%
of witnesses (sensu largo)
had been convicted for having committed at least one crime; about
30% had been diagnosed as having anti-social personality disorders;
and about 60% of the overall population concerned by the programmes
(namely witnesses and their relatives) showed signs of psychological
problems and personality disorders. This research also proposed
a new psychosocial model of witness protection, showing the relationship
between the individual characteristics of witnesses, the sources
of their stress, their coping strategies and subsequent behaviour.
The model makes a distinction between so-called “push” and “pull” witnesses:
the former are “pushed” to the WPP, as they have to choose between
co-operating with the authorities or being killed or seriously harmed,
while the latter have more options and consider entering a WPP as
only a business deal with the authorities. They quickly adapt to
new circumstances and have more problems with complying with strict
rules and procedures. WPPs with the participation of “pull” witnesses
should be as short as possible, since such witnesses generate conflicts.
Mr Debije also stressed that not only the witness protection unit,
but also other stakeholders were responsible for managing “pull
witnesses”, who were able to manipulate their entourage.
42. Mr Ihasz pointed out that most of the witnesses involved in
WPPs “had already betrayed someone”, that they were often unemployed,
had no legal income, had unclear legal relationships and sometimes
exhibited antisocial behaviour. They could even have exaggerated
demands towards the authorities, although the latter were making
enormous efforts in order to reintegrate them into society. If a
witness failed to co-operate, the authorities were allowed to terminate
the programme. However, a new issue arises in this context, as shown by
the judgment of the European Court of Human Rights in R.R. and Others v. Hungary: to what
extent can the exclusion of a witness from a WPP because of his/her
disobedience be compliant with the right to life as guaranteed in
Article 2 of the European Convention on Human Rights? This is a
new question that will soon have to be addressed by competent instances,
with the increase of the number of WPPs and cases of exclusion from
such programmes.
5. Current practice
in Council of Europe member States
5.1. The questionnaire
43. In order to obtain further information on witness
protection frameworks adopted by member States, specifically in
relation to the fields of organised crime and terrorism, and the
challenges in implementing such frameworks, in March 2014, a questionnaire
was sent to the parliamentary delegations of member States, via the
European Centre for Parliamentary Research and Documentation (ECPRD).
Thirty-three member States replied to this questionnaire: Albania,
Andorra, Austria, Belgium, Bosnia and Herzegovina, Croatia, the
Czech Republic, Estonia, Finland, France, Georgia, Germany, Greece,
Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg,
Montenegro, the Netherlands, Norway, Poland, Portugal, the Republic
of Moldova, Romania, the Russian Federation, Serbia, the Slovak
Republic, Slovenia, Spain and Sweden. Denmark informed the Secretariat
that, for various reasons, it would not reply. Moreover, two observer
States – Canada and Israel – provided information concerning their
witness protection mechanisms. The replies received are summarised
below.
5.2. Replies from member
States
5.2.1. Does your country’s
legal framework provide specifically for witness protection in the
field of organised crime and terrorism? If so, how does this protection
differ, if at all, from other criminal cases?
44. The majority of Council of Europe member States have
no specific witness protection provisions relating to witnesses
of terrorism or organised crime (Albania, Andorra, Austria, Belgium,
Bosnia and Herzegovina, the Czech Republic, Estonia, Finland, France,
Georgia, Germany, Hungary, Ireland, Lithuania, Luxembourg, Montenegro,
the Netherlands, Norway, Poland, Portugal, the Russian Federation,
Serbia, Slovenia, Sweden and Spain). In most of these countries,
witness protection measures are regulated in the Code of Criminal Procedure
and in a special legislation on witness protection (a draft law
on this subject is pending in Finland). Many countries affirmed
that they had established or could establish witness protection
programmes on the basis of special witness protection legislation
(Belgium, Croatia, the Czech Republic, France, Georgia, Germany,
Hungary, the Republic of Moldova, Montenegro, Poland, Portugal,
Romania, Slovenia and Sweden) or the practice of the police bodies
(Austria, Ireland, Lithuania and Norway). In Iceland, there are
no legal provisions regulating witness protection.
45. Although many member States do not explicitly provide separate
protection for witnesses in organised crime or terrorism cases,
the functioning of domestic frameworks can result in such protection
being afforded. In some member States, there are specific frameworks
for victims and witnesses of human trafficking, potentially relevant
to the field of organised crime. In some circumstances, these provisions
are no different from those relating to other witnesses (Georgia).
However, in France, victims of human trafficking are automatically
provided a 30-day residence card which is then subject to renewal
or revocation. Additionally, protection afforded to victims of terrorism,
as in the Republic of Moldova, or to “shielded witnesses”, as in
the Netherlands, is of practical relevance to the witnesses of terrorist
activities.
46. In Italy, Act 82 of 1991 contains framework legislation on
protection of witnesses and collaborators of justice in cases of
organised crime and terrorism and provides for a range of witness
protection measures. In Croatia, the Witness Protection Act mentions
“organised crime” as one of the four types of crime to which witness
protection is applicable; the law also lists crimes “against the
Republic of Croatia”, those “against values protected by international
law” and those that may result in a 5-year prison sentence or a
more serious punishment and it does not make a distinction between
the four types of crime when it comes to its application. Special
protection is specifically afforded to individuals in relation to
terrorism and organised crime in Greece and the Slovak Republic.
In Greece, the system provides these witnesses with both procedural
protection during the criminal proceedings and special police protection
outside the proceedings. The measures adopted are proportionate
to the threat faced by the individual witness. Such protection outside
proceedings is generally not available to other witnesses; however
the protection during proceedings is available to witnesses irrespective
of the crime involved. In the Slovak Republic, the Witness Protection
Act applies to endangered individuals who have witnessed either
crimes which carry sentences of life imprisonment, or crimes that
relate to organised crime or terrorism. The protection, including
physical police protection and potential identity changes, is identical
irrespective of which category the witness falls into. Further protections
contained within the Criminal Procedure Code, including, inter alia, non-disclosure of identity
and notification of the whereabouts of the accused, are available
to all endangered witnesses irrespective of the crime in question.
5.2.2. What are the greatest
challenges – legal and/or logistical – regarding the implementation
of witness protection measures?
47. The issue of balancing the rights of the defence
with that of the witness in situations where anonymity had been
granted was raised by a number of States (the Czech Republic and
France) and specifically with regards to Article 6.3.d of the European Convention on
Human Rights and the defendant’s right to confront a witness by
Germany. In the majority of member States, there were safeguards
that attempted to find such a balance. Such measures included provisions
requiring anonymous testimony to be corroborated (France, Hungary
and Portugal), the ability to challenge the granting of anonymity
(the Czech Republic and France), and provisions ensuring the defence’s
ability to question the witness (the Czech Republic, France and
Poland).
48. The need for a system to not re-victimise certain witnesses
was a logistical issue raised by Austria. Further to this, the need
to have separate appropriate systems relating to innocent witnesses
and collaborators of justice was highlighted by Slovenia. Montenegro
mentioned the difficulty in defining the notion of a “close person”.
The Netherlands pointed out the need to have more clarity in the
law about the content of the agreements concluded with witnesses
and the duration of the protection.
49. Many countries raised the psychological and socio-economic
difficulties encountered by witnesses, such as separation from their
families and unemployment (Croatia, Italy, the Netherlands, Norway
and Slovenia) or a lack of motivation coupled with a lack of trust
in the authorities and their confidentiality measures (Serbia and the
Slovak Republic).The Irish media reported about some witnesses preferring
to serve a term of imprisonment rather than being relocated to another
country.
50. Certain logistical problems were raised, including institution
building (Montenegro and Slovenia) and a lack of funding and/or
human resources (Croatia, Poland and Serbia). Further logistical
issues related to the small size of the member States’ territory.
Greater international co-operation was needed by Croatia, Estonia and
Slovenia in order to have an effective and functioning system of
witness protection and relocation. Effective relocation was not
practical within such a small territory.
51. Finally, the prominence of social media results in greater
difficulties for the witness protection programmes in the Netherlands
and Slovenia when creating new identities for individuals.
5.2.3. Has your country
in the past or does your country currently deal with witness protection
issues on a transnational level? If yes, what are/have been the
greatest challenges with regards to implementing the witness protection
measures?
52. There are a number of instruments relevant to transnational
witness protection that cover varying geographical regions.
The
Police Cooperation Convention for South-East Europe is a tool that aims to enhance co-operation in the exchange
of individuals involved in witness protection programmes. The countries
involved (Albania, Bosnia and Herzegovina, Hungary, the Republic
of Moldova, Romania, Serbia and “the former Yugoslav Republic of
Macedonia”) also exchange information that is relevant to the continuation
of witness protection programmes within the contracting States.
Additionally, the contracting States undertake to establish national
central units to focus on the international elements of domestic
witness protection programmes. There were no comments relating to
the effectiveness of this instrument or any challenges concerning
its implementation.
53. The
Agreement on the co-operation in the area of witness protection
(2012) is similar in its effect to the above-mentioned instrument.
Austria, Croatia, the Czech Republic, Estonia (joined in 2013),
Hungary, Poland, Romania and Slovenia agreed to increase co-operation
in this field and provide information in furtherance of such programmes,
alongside improved training for relevant personnel. The contracting
States agreed to set up National Contact Points in order to run
the national witness protection programme. Poland highlighted that
any international framework should include such bodies that aim
to co-operate with sharing of information, training and the facilitation
of direct requests for protection from other contracting Parties.
54. The Norwegian domestic system adheres to the guidance afforded
by Europol on the establishment, or adaptation, of domestic witness
protection programmes. Additionally, Croatia is involved in the
Europol witness protection network that regularly holds conferences
and shares information in order to further harmonise processes and
procedures relating to transnational witness protection programmes.
No specific challenges were noted in relation to the Europol guidance
or network.
55. The most common form of transnational co-operation was in
relation to individual memoranda of understanding agreed upon between
States in relation to specific cases and requests for assistance
with witness protection. With such a system, the issue of relocating
a witness to a State that uses another language was highlighted
within Ireland.
56. Generally, the main challenge relating to witness protection
at a transnational level is the differing systems and standards
used in member States. The need for greater harmonisation of such
elements, and for greater institutional and judicial co-operation,
was raised by Croatia, Montenegro and Poland.
6. Strengthening witness
protection measures in Europe
6.1. Strengthening international
co-operation regarding witness protection measures as a key element
in the fight against organised crime and terrorism
57. While improvements have been made on this front over
recent years, the realisation that organised crime and terrorism
cannot be exclusively investigated and prosecuted on a national
level is vital for improving international co-operation between
States.
Without such co-operation,
the effective relocation of witnesses, especially those coming from
small States, would be difficult to achieve.
58. The UNTOC and its protocols
call on States to implement effective witness protection measures
and to enhance international co-operation in this field. Article
24, Section 1 of UNTOC provides that States Parties shall consider
entering into agreements or arrangements with other States for the
relocation of witnesses. As regards collaborators of justice, States
Parties “may consider entering into agreements or arrangements,
in accordance with their domestic law” concerning mitigating punishment
and/or granting immunity from prosecution (Article 26, Section 5).
A provision similar to that of Article 24, Section 1 of the UNTOC
is contained in the United Nations Convention against Corruption
(Article 32, Section 3).
59. This crucial element has also been recognised in Committee
of Ministers Recommendation Rec(2005)9, which reiterates the need
to employ a “common approach in international issues related to
the protection of witnesses and collaborators of justice”, and in
particular to ensure a sufficient exchange of information between the
relevant authorities. The Committee of Ministers sets out concrete
objectives, such as: providing assistance in the relocation abroad
and protection of witnesses at risk, collaborators of justice and
persons close to them; facilitating and improving modern communications
technology, such as videoconferencing; co-operating and exchanging
best practices with existing networks of national experts; and co-operating
with international criminal courts. This recommendation also emphasises
that measures promoting international co-operation should be adopted
and implemented “in order to facilitate the examination of protected
witnesses and collaborators of justice and to allow protection programmes
to be implemented across borders”, such as assistance in relocating
protected witnesses, collaborators of justice and persons close
to them and ensuring their protection.
60. The need for a pan-European approach to witness protection
measures, despite the differences in current organisational structures,
was recently reiterated in the White Paper and the European Parliament’s Report
on organised crime, corruption and money laundering.
It was also
invoked by our experts, who recalled that Europol was currently
working on harmonising procedures and programmes in this field and
was co-operating with some non-European Union countries, including
the Russian Federation and Turkey.
6.2. Towards a new legal
instrument?
61. According to the report “Terrorism: Protection of
Witnesses and Collaborators of Justice”, there are several lacunae
in the international legal framework concerning protection of witnesses.
Neither the Second Additional Protocol to the European Convention
on Mutual Assistance in Criminal Matters nor the UNTOC regulates
international co-operation concerning protection of collaborators
of justice and of persons close to witnesses and collaborators of
justice at risk. No binding instrument expressly establishes co-operation
on the following issues:
- adoption
and implementation of procedural protective measures other than
hearings by video or telephone conference in another country;
- adoption and implementation of non-procedural protective
measures other than relocation to another country;
- costs related to the implementation of procedural and
non-procedural protective measures (other than hearings by video
or telephone conference and relocation to another country) to be
adopted and/or implemented in another country.
62. As recalled in the above-mentioned report, the Final Report
of the Committee of Experts on the Protection of Witnesses and
Pentiti in relation to Acts of Terrorism
(PC-PW) from 2003
proposed the establishment of a
fund aimed at covering all the expenses related to relocation and
to other protective measures, as well as to the training of staff.
The fund could partially be financed by the proceeds and assets seized
from the perpetrators of crimes and would help less wealthy countries
cover the expenses related to relocation and protection of witnesses/collaborators
of justice and their relatives.
63. In its
Recommendation
1952 (2011) on the protection of witnesses as a cornerstone for
justice and reconciliation in the Balkans, the Assembly called on
the Committee of Ministers to “instruct the European Committee on
Crime Problems (CDPC) to undertake a feasibility study on whether
the protection and support of witnesses could be the subject of
a future Council of Europe convention”. The Committee of Ministers, however,
did not see the benefit of preparing such a feasibility study and
was of the opinion that “the required improvements relate[d] to
the implementation level”.
64. The White Paper proposes numerous measures to be taken in
order to reinforce witness protection in cases of transnational
organised crime. It states that the Council of Europe should analyse
the differing approaches to witness protection in Council of Europe
member States and try to “find out why the witness programmes do
not work as efficiently as they should in the realm of TOC”. A study
carried out to this effect should include a number of issues, including
an assessment of the implementation of Recommendation Rec(2005)9,
the necessity to create a separate legal regime for the protection
of witnesses and that of collaborators of justice, the rights of
witnesses in witness protection programmes, institutional issues,
etc. As regards incentives for co-defendants’ co-operation with
law-enforcement authorities, the White Paper invites the Council
of Europe to carry out a more in-depth study on this issue, with
a focus on various forms of plea bargaining and on international
agreements on the transnational application of such measures, and
to adopt a recommendation or a binding legal instrument to promote
harmonised measures in this field.
7. Conclusion
65. Given the seriousness of terrorism and organised
crime, both in terms of the profound effects on the witnesses, and
in light of the complexity of investigating and prosecuting them
due to their closed nature and transnational reach, it is crucial
to have strong, reliable and durable witness protection measures.
Indeed, these measures represent an indispensable tool in the fight
against organised crime and terrorism in Europe. The nature of these
transnational crimes dictates that such measures must be co-ordinated
and coherent among Council of Europe member States if they are to
be effective. While “[e]xperience has shown that in witness protection
there are no easy solutions”,
understanding
the dynamics of organised crime and terrorism, and the crucial role
of witness testimony therein, constitutes a solid first step to
formulating an adequate response both nationally and as part of
a co-ordinated multilateral response among Council of Europe member
States.
66. There is a continued need to improve national legislation
providing such protection and support among Council of Europe member
States, as has already been emphasised in Assembly
Resolution 1784 (2011). While most Council of Europe member States have some
basic form of witness protection measures,
there are great variations between
them,
and a number of countries’
measures remain insufficient, due to lack of trust from the population
(given the well-known infiltration of State bodies by organised
criminals in certain countries), or due to inadequacies in the legal
framework, the funding, logistical capacities, or co-ordination and
co-operation between relevant actors.
67. The measures to combat international organised crime used
nowadays differ from those used in the 1980s, due to globalisation
and computerisation processes. To dismantle criminal organisations,
including transnational ones, the use of traditional procedural
and non-procedural measures is not sufficient. New methods of ensuring
witness protection and support, such as witness protection schemes
based on the newest research results in the field of psychology
and criminology, are needed. These schemes will involve more frequently
the participation of suspects or co-defendants, as without their
“insider knowledge” the infiltration of terrorist or other organised
crime groups would be impossible in most cases. In order to encourage
them to come forward and co-operate with law-enforcement agencies
and the judiciary, adequate witness protection measures at all stages
of the trial process (both procedural and non-procedural) and beyond
are indispensable. Nevertheless, incentives such as the mitigating
of sentences or granting of immunity from prosecution should be
given, in accordance with domestic law.
68. Taking into account the transnational character of many criminal
organisations, relocation of witnesses/collaborators of justice
is of crucial importance and should be possible at short notice.
Despite the existence of a general international legal framework
in this respect, certain standards still need to be established,
especially bearing in mind the difficulties experienced by smaller
member States.
69. Any witness protection programme should be based on co-operation
between a witness protection unit and the endangered/protected person,
who must always join the programme voluntarily. Such a programme should
be a measure of last resort because of its significant impact on
the private life of the protected person and those close to him
or her. Witness protection schemes should, however, always strive
to respect the right to a fair trial and the right of defence, as
guaranteed in Article 6 of the European Convention on Human Rights. A
witness protection unit/agency should co-operate with law-enforcement
bodies and should be independent from the investigative and prosecutorial
bodies.
70. The efficiency of witness protection programmes in combating
organised crime and terrorism requires certainly more resources,
which might be difficult to obtain in times of economic and financial
crisis. It also needs more international collaboration in the management
of such schemes, including under the existing multilateral agreements.
Europol, which has acquired extensive experience in this area, could
be of help by providing advice and facilitating international co-operation
not only within the European Union area, but also outside it.
71. As stated in the White Paper, there seem to be enough international
legal instruments in the field of witness protection for the time
being, and the major problem lies in their implementation. However,
bearing in mind the fact that witness protection schemes are a relatively
recent measure, it would perhaps be useful to conduct more studies
(based on conviction statistics) on their implementation at the
European level and reflect on the possibility of elaborating a more
comprehensive international legal framework, which would specifically focus
on such measures. The Council of Europe, which has been active in
promoting protection and support for witnesses and collaborators
of justice, could play a leading role in carrying out such an expert
study and, if need be, proposing new legal instruments.