Comparative analysis of witness protection within the ICC …intralegalis.com/gallery/essay-comparativ… · Web view · 2014-04-29Witness protection has a great importance in

Comparative analysis of witness protection within the ICC and the Bulgarian Criminal Justice System

By Gergana Rabatileva


Table of contents

Table of contents……………………………………………………………………………….2

Table of abbreviations………………………………………………………………………….3

Table of authorities…………………………………………………………………………….4

Introduction…………………………………………………………………………………….6

Protection of witnesses in the Bulgarian criminal justice system………………...……………6

Legal framework for witness protection……………………………………………….7

Measures for witness protection guaranteed by CCP…………………...……………..8

Special measures for witness protection guaranteed by APITRCP……………………9

Protection of witnesses under the jurisdiction of the ICC……………………………………10

Legal framework for witness protection……………………………………………...11

Measures for victims and witness protection pursuant Article 68(2) and (5) of the Rome Statute………………………………………………………………………….12

Measures for victims and witness protection pursuant Rule 87 and 88 of the Rules of Procedure and Evidence………………………………………………………………13

Protective measures, Rule 87…………………………………………………13

Special measures, Rule 88…………………………………………………….14

The role of the Victims and Witnesses Unit (VWU)…………………………………15

International Criminal Court’s Protection Program (ICCPP)………………………..16

Comparison between the Bulgarian criminal justice system and the International Criminal Court………………………………………………………………………………………….17

Measures for victims and witness protection pursuant Article 68(2) and (5) of the Rome Statute and Article 123(2) and (7 )of CCP……………………………………18

Measures for victims and witness protection pursuant Rule 87 and 88 of the Rules of Procedure and Evidence, and the Bulgarian APITRCP………………………………19

The role of the Victims and Witnesses Unit (VWU) and the Office for Protection of People at Risk…………………………………………………………………………19

Conclusion……………………………………………………………………………………20

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Table of abbreviations

International Criminal Court (ICC) or the Court

Victims and Witnesses Unit (VWU)

Universal Declaration of Human Rights (UDHR)

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Rome Statute of ICC (RS)

Rules of Procedure and Evidence of ICC (RPE)

Act of Protection of Individuals under Threat in Relation to Criminal Proceedings (APITRCP)

Bulgarian Code of Criminal Procedure (CCP)

Special Intelligence Means Act (SIMA)

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Table of authorities

Doctrine

Cassese, A. et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2002)

Triffterer, O., Commentary on the Rome Statute of the International Criminal Court, (Nomos, Baden-Baden) 2nd Edition, 2008

H. Brady, ‘Protective and Special Measures for Victims and Witnesses’, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Transnational Publishers 2001

A. Rydberg, 'The Protection of the Interests of Witnesses - The ICTY in Comparison to the Future ICC', Leiden Journal of International Law (12) 1999-2

Elena Nedialkova, Legal argumentation for witness protection under Bulgarian Code of Criminal procedure, the USA legislation and European and other countries

Ivan Petrov, Witness protection in the State Parties of the European Council

Report of The Working Group on Procedural Matters on the Rome Statute, A/CONF.183/C.1/WGPM/L.2/Add.8 15 July 1998

Thordis INGADOTTIR, Françoise NGENDAHAYO, Patricia Viseur SELLERS, ICC Discussion Paper # 1 March 2000, Victims and Witnesses Unit (Article 43 of the Rome Statute) , p. 15, Para 2 No. R (97) 13 of the Council of Europe Recommendation “Concerning intimidation of witnesses and the rights of the defense”

Legislation

Universal Declaration of Human Rights (UDHR)

Rome Statute of ICC (RS)

Rules of Procedure and Evidence of ICC (RPE)

Act of Protection of Individuals under Threat in Relation to Criminal Proceedings (APITRCP)

Bulgarian Code of Criminal Procedure (CCP)

Special Intelligence Means Act (SIMA)

Annex B “Compilation of relevant provisions in Legal texts of the Court”, ICC-01/04-01/06-1063-AnxB 07-12-2007 1/17 EO T

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Case law

ICC-01/04-01/06 (Trial Chamber I), Date: 15 January 2009, “Decision on the prosecution's application for the admission of the prior recorded statements of two witnesses”

ICC-01/04-01/06, Date: 13 June 2008 (Trial Chamber I), “Decision on the admissibility of four documents”

ICC-01/04-01/07-1795-Red-tENG 03-12-2010 1/7 RH T, “Decision Granting Protective Measures for Witness 323 during In‐Court Testimony”

ICC-02/05-02/09-137-Red 09-10-2009 1/5 IO PT, "Decision on the Defence's application for protective measures dated 2 October 2009"

ICC-01/04-73 22-07-2005 1/6 UM, “Decision on protective measures requested by applicants 01/04-1/dp to 01/04-6/dp”

ICC-01/05-01/08-800-Corr-Red4 06-07-2010 1/16 RH T “Prosecution’s Request for Protective and Special Measures for Prosecution Witnesses at Trial”

ICC-01/04-01/07, Date: 12 June 2008, “Victims and Witnesses Unit's considerations on the system of witness protection and the practice of "preventive relocation"”

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Introduction

Witness protection has a great importance in every national legal system, although the problems which arise are many. Moreover, such protection is more than desirable on an international level where all the best practices should be applied. The purpose of this essay is to analyze and compare the legal framework on a national level by exploring the Bulgarian Code of Criminal Procedure as well as other relevant legislation and the Rome Statute, and The Rules of Procedure and Evidence of the International Criminal Court. Indeed, the essay is to determine the effectiveness of the measures for protection under the legal framework of both systems with regard to the problems arising. Furthermore, to discuss the latter, there will be examined some questions in the context of the legislation as what is the purpose of the protection, how is guaranteed the right to witness protection and which witnesses can be protected, who is obliged to provide the protection, when does the obligation for protection start, how the procedure starts and ends, which are the circumstances which determine long and short-term protection and what are the measures taken for protection witnesses.

The aim of this comparison is to provide additional information and also to highlight the problems which arise on national and international level, with emphasis placed on the differences and similarities in the two systems.

Finally, it is hope that by the end of the essay it will be established that some complications may arise either because of lack of appropriate measures for protection on a case-by case basis, enough information or that sometimes the authorities must have a stronger discretionary power in ordering measures for protection.

I. Protection of witnesses in the Bulgarian criminal justice system

For first time the institute of witness protection has been regulated in Bulgaria with the introduction of Article 97a in the Act of Amendment of the Code of Criminal Procedure (CCP) of Republic of Bulgaria. Subsequent Amendments to the CCP were made in 1999 which laid the foundation of procedural development and improvement in witness protection. In 2005 the Act of Protection of Individuals under Threat in Relation to Criminal Proceedings (APITRCP) was adopted and thereby, two legal regimes1 were established with regard to the protection of witnesses and other participants in the criminal process, as well as other persons in direct connection with them.2

Legal framework for witness protection1 The general provision is Article 123 CCP while APITRCP, legis speialis to CCP, includes the conditions and the procedure for enrolment of witnesses in the protection program.2 In the present essay the general provision (Article 123 of CCP) will be discussed in depth.

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Article 123 of CCP is the provision which provides for witness3 protection in the Bulgarian criminal justice system. The application for protection is ex parte. The scope of the protection with regard to the persons concerned is defined in Paragraph 1. It is stated that an immediate protection under this article might be given to the life, health or property of the witness, his/her ascending and descending relatives, brothers, sisters, spouse or individuals with whom he/she is in a particularly close relationship in the presence of certain conditions when there are sufficient grounds to assume that, as a result of testimony, a real threat has arisen or may arise. There are several preconditions for giving protection to a witness.

First, as a result of the testimony there must be sufficient grounds to assume that a real threat 4 has arisen or may arise. Object of the threat is the life, the health or the property of the witness or his/her ascending and descending relatives, brothers, sisters, spouse or individuals with whom he/she is in a particularly close relationship. The real threat is determined by the testimony of the witness, therefore it must be direct and immediate result of it. Indeed, there should be a causal link between the testimony and the occurrence or probability of the threat. According to Paragraph 4, subparagraph 3, the circumstances necessitating the witness protection must be identified, as a mandatory requisite in the act of the authority which rules on the measure. The legislator did not specify the factual grounds that would cause a real threat or its extent and intensity.5

Second, the other indispensable precondition for witness protection is his/her request or consent. The request for protection might be expressed orally or in writing, stating the reasons for it. If the request is made orally a protocol by the competent authority should be made and signed by the witness. The same procedure applies for his/her ascending and descending relatives, brothers, sisters, spouse or individuals with whom he/she is in a particularly close relationship.

If the initiation to take measures for protection comes from the Prosecutor, the Judge-raporteur or the Court, the witness ( or/and ascending and descending relatives, brothers, sisters, spouse or individuals with whom he/she is in a particularly close relationship) must except the measures taken upon them. Any refusal or consent is written in a protocol which reflects the circumstances requiring the protection or its refusal. In Bulgaria the consent of the person concerned is necessary as well as his/her signature, because by taking measures for protection over him/her number of rights and freedoms provided in the Constitution are

3 The Council of Europe adopts recommendation No. R (97) 13 “concerning intimidation of witnesses and the rights of the defense”, where the following definition of “witness” is established: "witness" means any person, irrespective of his/her status under national criminal procedural law, who possesses information relevant to criminal proceedings. This definition also includes experts as well as interpreters;”4 The Council of Europe adopts recommendation No. R (97) 13 “concerning intimidation of witnesses and the rights of the defense”, where a definition of “intimidation” is established: "intimidation" means any direct, indirect or potential threat to a witness, which may lead to interference with his/her duty to give testimony free from influence of any kind whatsoever. This includes intimidation resulting either from the mere existence of a criminal organization having a strong reputation of violence and reprisal, or from the mere fact that the witness belongs to a closed social group and is in a position of weakness therein;”5Elena Nedialkova, “Legal argumentation for witness protection under Bulgarian Code of Criminal procedure, the USA legislation and European and other countries”

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restricted. The first paragraph establishes also who has the obligation to provide measures for protection. These are the Prosecutor, the Judge-raporteur and the Court. As an executive decision making body, each of them might initiate an order for witness protection in the appropriate stage of the process. This is a permanent possibility for protection during every stage, therefore, such a legal regulation may stimulate the search for objective truth and the realization of other objectives of the criminal process.

The second paragraph provides the measures for protection and the fourth paragraph ensures protection to ascending or descending relatives, brothers, sisters, the spouse or individuals with whom the witness is in a particularly close relationship, but again their consent or with consent from their statutory representatives is mandatory. Paragraph 4 gives an exhaustive list of the data which should be included in the act of the respective authority body as follows: “(i)The issuing body; (ii)The date, hour and place of issuance;( iii)The circumstances warranting that protection be provided; (iv)The type of measure applied; (v)Information about the identity of the individual for whose protection arrangements are made; (vi)The identification code given to the individual whose identity is kept secret; (vii)Signature of the respective body and the individual concerned.” Paragraph 6 makes clear that the measures for protection should be withdrawn on request of the person concerned or in case when those measures are not needed anymore, therefore when the threat is eliminated the Prosecutor, the Judge-raporteur or the Court should prepare another act in which the respective measures should be withdrawn.

Paragraph 5 defines who may access the protected witness: “The respective bodies of pre-trial proceedings and the Court”. By using the wording “respective bodies of pre-trial” leads to the conclusion that such access should also be granted to the police investigator and not only to the prosecutor. On the other hand the defense may have access to the protected witness only if the witness testify on their behalf.

Paragraph 8 enshrines the existence of the protection program governed by the Act of Protection of Individuals under Threat in Relation to Criminal Proceedings and provides the conditions for involving in it. First, there should be already taken a measure for protection under the provision of Article 123(2) CCP, second, this measure should be in effect not longer than thirty days, third, there should be a preposition for inclusion of the witness or his/her ascending or descending relatives, siblings, spouse or of the persons with whom he/she is in particularly close relationships in the protection program made by the Prosecutor or the Judge-raporteur.

Measures for witness protection guaranteed by CCP

Article 123(2) and (7) CCP provides the measures for witness protection and defines that any of the listed measures have temporary nature. In paragraph 2, subparagraph 1 defines the usage of “Personal physical protection by the authorities of the Ministry of Interior” as a measure for protection. Another measure for protection is in Subparagraph 2: “Keeping his/her identity secret”. This measure leads to some changes in the general organization of the investigation and procedural and tactical organization of the forensic examination of protected

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witnesses. Creating the safeguards for the privacy of the witness by keeping secret his/her identity limit the principles of immediacy and publicity of the hearings, therefore this may lead to violation of the accused right to a fair trial. Moreover, not only the measures for protection should be maintained in secrecy but also the planning of interrogation, which is conducted orally and by written questioning of the parties which do not have access to the witness on pre-trial stage and on trial stage the hearing of a witness with a secret identity is behind closed doors.6 The accused and his/her defense lawyers should be acknowledged of the interrogation by giving them a copy of the testimony without signature of the protected witness. The certification of the copy is done by the authority body under control and direction of the process. The usage of tactical interrogation, such as establishing psychological contact, suddenly questioning, cross-examination, control of the non verbal behavior of the witness is not possible.

Paragraph 7, as the third measure for protection allows the usage of special intelligence means to eliminate the treat, in the circumstances when there is a written consent of the person concerned. Special intelligence means, according to the Special Intelligence Means Act are the technical means and the operational means for their implementation which are used to produce material evidence – films, video, sound records, photographs and marked objects. Technical means are electronic and mechanical equipments, as well as substances that help to prepare documents about the activities of the persons and objects supervised. Operational means are monitoring, wiretapping, tracing out, infiltration, marked examination of correspondence and computerized information, controlled delivery, trust transaction and investigation by an undercover officer.7

Special measures for witness protection guaranteed by APITRCP

Special measures for protection are listed exhaustively in the Act, as well as the procedure for giving such a protection. The special measures are given within the “Protection program” and are as follows: personal physical protection; security of property; temporary accommodation in a safe place; change of place of residence, place of work or school, or placement in another place of custody; change of identity. Persons who may be protected are the participants in the criminal proceedings-witness, private prosecutor, civil plaintiff, suspect, accused, expert, certifying person; accused, who already is convicted, as well as ascending and descending relatives, brothers, sisters, spouse or individuals with whom the persons listed above are in a particularly close relationship. Right to a special protection arises in the cases when the testimonies, explanations or information is from crucial importance as evidence in the criminal process of serious intentional crimes, as well as any other crimes committed on behalf of or pursuant to a decision of an organized criminal group. For special protective measures should be applied to the regional Prosecutor or the Judge-raporteur by person at risk, investigator, Prosecutor, director of the custody. The regional Prosecutor or the Judge-raporteur decide on the application and if approved they send a well-grounded proposal for 6 Article 263(1) CCP The case shall be examined or individual acts within judicial proceedings shall occur behind closed doors where this is required in view of safeguarding the state secret or morality, as well as in the hypotheses of Art. 123, paragraph 2, item 2.7 Article 2 of the Special Intelligence Means Act

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inclusion in the protection program to the Council for Protection. Within the Ministry of Justice is sat up a specialized department, “Office for protection of people at risk”, which executes the decision of the Council for Protection. The “Office for protection of people at risk” must complete several tasks: to inform the person at risk about the program; make an agreement for inclusion in the program with the person at risk and therefore, notifies the regional Prosecutor or the Judge-raporteur about it; determine liaison officer with the protected person; conduct, together with a guarding team, specially formed for the case, the specific measures of protection based on the agreement. The Office build, maintain and keep a database of persons involved in the protection program in accordance with the Act on Personal Data Protection; the Office cannot disclose any information in connection with the protection program; it can request assistance of all competent authorities which cannot be denied; the Office reports regularly to the President of the Council for protection of the resources spent on administration of the program for protection-generally and in each case. The protection program may be terminated by the person concerned by making a request to the Council for protection by the liaison officer. The Council for protection may terminate the program in the following cases: death of the protected person; when the reasons for including the person in the protection program exists no more; with the expiration of the period provided in the agreement; when the protected person does not fulfill his/her obligations under the agreement without a good reason.

II. Protection of witnesses under the jurisdiction of the ICC

The most egregious crimes fall under the jurisdiction of the International Criminal Court (Court), therefore its main function is either to provide justice for the victims and to prosecute the perpetrators and, the most important – to find the truth. Indeed, to perform its duties the Court depends on the people who have been witnesses of the crimes from which a big part are victims. Moreover, those witnesses may need a certain protection and to be assured that they and their families will not be victimized before, during or after testifying in the Court, which brings forward the concept of witnesses and victims protection.

The victims usually have double function, as witnesses and victims who suffered from the crimes and are carriers of certain rights given them by the procedural system defined for the Court.8 On the other hand the witnesses do not have any procedural rights in the process and can only request on measures for protection in the course of the proceedings.9 Anyway, the legal instruments of ICC always talk en block about victims and witnesses and so far as the victims might become parties of the process.

Legal framework for witness protection

8 They can become parties in the process, therefore they are represented by the Office of the Public Counsel for Victims and their rights are defended.9 Cassese, A. et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford: OUP, 2002), p.1266, paragraph 1

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Several provisions relate to the protection of victims and witnesses in the process.10 The protection spreads through the entire proceedings before the ICC. The general provision11 which ensures protection for victims12 and witnesses is Article 68 of the Rome Statute. Paragraph 1 of the article provides protection for: “the safety, physical and psychological well‐being, dignity and privacy of victims and witnesses” with regard to the personal characteristics of every individual: “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”, therefore, those are the factors which the Court must take into consideration in decision making process to grant protection. In the Universal declaration for Human Rights the dignity is proclaimed as inherent and should be protected as a highest value of every individual and his/her rights. So far, as defined in the Rome Statute, well-being, dignity and privacy are from a big importance for all the witnesses and victims and their participation in the process. Therefore, the Court has a wide discretionary power in implementing measures for protection with regard to the “views of the victim or witness.” Moreover, the Court is not limited to order measures for protection only to persons suffered from sexual or gender violence, or violence against children.

The last sentence of the paragraph makes the statement that the measures should not be: “prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.13” Moreover, in paragraph two is provided that the accused might also benefit from the protection foreseen for victims and witnesses.

The obligation for protection is enshrined to the Court: “The Court shall take appropriate measures to protect” and to the Prosecutor who: “shall take such measures particularly during the investigation and prosecution”. The Court consists of The Presidency, the Trial Chambers, the Prosecutor and the Registry as recognized in Article 34 of RS. Moreover, Article 58, Paragraph 3, Subparagraph (c), provides that the Pre-Trial Chamber has the obligation: “Where necessary, provide for the protection and privacy of victims and witnesses”. Article 64, Paragraph 6, Subparagraph (e) says that Trial Chamber has the power to:” Provide for the protection of the accused, witnesses and victims; ”, Article 68(1) sets up the obligation of the Prosecutor to take protective measures.

Paragraph 4 endorses the existence of a specialized body on the measures for protection and security arrangements, counseling and other appropriate assistance for witnesses and victims who appear before the Court and refers to Article 43(6) Rome Statute.14 This is the Victims

10 See Annex B “Compilation of relevant provisions in Legal texts of the Court”, ICC-01/04-01/06-1063-AnxB 07-12-2007 1/17 EO T11 According to Triffterer, O., Commentary on the Rome Statute of the International Criminal Court, (Nomos, Baden-Baden) 2nd Edition, 2008, p. 874, Para 12, Article 68 is a general provision12 A/CONF.183/C.1/WGPM/L.2/Add.8 15 July 1998The Working Group on Procedural Matters on the Rome Statute in their report to the Committee of the Whole noted the following: “Delegations took the view that the protective measures contemplated by this article are intended to be afforded to witnesses, to victims (who are not witnesses) directly connected with an investigation or proceedings before the Court and to other persons who are at risk on account of the testimony given by such witnesses. Some delegations did not agree with this.” 13 Articles 66 and 67 of the Rome Statute provide the presumption of innocence and the rights of the accused.14 Article 43(6) 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.

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and Witnesses Unit, placed within the Registry. The Victims and Witnesses Unit does not make decisions but only “may advise” either the Court or the Prosecutor with regard to its tasks.15

The measures for protection provided by Article 68(2) are two - conducting proceedings “in camera” or presenting evidences: “by electronic or other special means.” Paragraph 5, on the other hand, endorses another protective measure, i.e. non disclosure of evidence or information by the Prosecutor and instead submitting a summery. Finally, the measures for protection are further elaborated in the Rules of Procedure and Evidence and more specifically in Rule 8716 and 88.17

Measures for victims and witness protection pursuant Article 68(2) and (5) of the Rome Statute

Article 68(2) provides for the measures for protection when part of the proceedings are conducted in camera, as well as presenting evidences by electronic or other special means and specifies the circumstances when ordering those measures is mandatory: “in the case of a victim of sexual violence or a child who is a victim or a witness.” The provision of paragraph 2 includes presumption that the parties do not have to apply for this measure for protection because it is automatically granted for the above mentioned categories of witnesses and victims. The Court has discretionary power to conduct hearings in camera to any other witness or victim, as well, when comes to protection of “the safety, physical and psychological well‐being, dignity and privacy of victims and witnesses”. Such measures make an exception to the principle of public hearings.18

The measure for protection foreseen in providing testimonies by electronic or other special means refers to in the first sentence of Article 69(2) of the Statute “as providing instances when there may be a departure from the expectation of oral evidence, deals directly with the particular exigencies of trials before the ICC, and most particularly there is an express recognition of the potential vulnerability of victims and witnesses, along with the servants and agents of a State, which may require "special means" to be used for introducing evidence.” In it decision the Court also considers that exist variety of possibilities for protection.19

In paragraph 5 is provided the measure for protection of non disclosure of evidence or information by the Prosecutor and instead submitting a summery and brings up the circumstances when this measure can be used: “where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a

15 A. Rydberg, 'The Protection of the Interests of Witnesses - The ICTY in Comparison to the Future ICC', Leiden Journal of International Law (12) 1999-2, pp. 465-466, Para 1.16 Protective measures 17 Special measures18 No.: ICC-01/04-01/06 (Trial Chamber I), Date: 15 January 2009, “Decision on the prosecution's application for the admission of the prior recorded statements of two witnesses” The Court provides its view “Article 68(2) of the Statute facilitates a departure from the usual course of "public hearings" in order to protect victims and witnesses or an accused, in that the Court may conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means.”19 ICC-01/04-01/06, Date: 13 June 2008 (Trial Chamber I), “Decision on the admissibility of four documents”

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witness or his or her family”, which must be conducted again with regard to the accused rights.

Measures for victims and witness protection pursuant Rule 87 and 88 of the Rules of Procedure and Evidence

There are two types of measures stated in the Rules of Procedure and Evidence, which are protective and special measures. The main difference between them is that while the protective measures rule applies when the identity or location of a victim, witness or other person at risk need protection from the public or media, the special measures rule is more flexible and allows the Court to maintain measures with regard to the testimonies of certain vulnerable victims and witnesses and their assistance.20 Moreover, both protective and special measures might be applied together.21

a. Rule 87, Protective Measures

Sub-Rule 1 provides protection for victims, witnesses or another person at risk. To be given such a protection a request must be made by the Prosecutor22, the defense23, witness, victim and his/her legal representative, if any or a Chamber can initiate protective measure on its own motion.24 A Chamber is the one to decide on the need of protection under Rule 87 and seeks to obtain the consent of the person who is the object of certain protective measure. The Victims and Witnesses Unit has only a consultative function in the decision making process of the Chamber. The testimony of the person concerned must be given pursuant Article 68(1) and (2) 25 as referred in the Rule. By making an order for protective measures the Court must take into account the accused rights, that they are not prejudicial or inconsistent and a fair and impartial trial.

In Sub-Rule 2 is given the mechanism for making an application for protective measures. The application for protective measures cannot be ex parte, because this rule entitles to protect from the media and the public and not from the accused and the defense lawyers or the prosecutor. The Prosecutor and the Defense should acknowledge the request and they can respond on it. A motion or request affecting a particular witness or a particular victim shall be served on that witness or victim or his or her legal representative, if any, and to the other party

20 H. Brady, ‘Protective and Special Measures for Victims and Witnesses’, in R.S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Transnational Publishers 2001, p.44021 For example, ICC-01/05-01/08-800-Corr-Red4 06-07-2010 1/16 RH T, where the Prosecutor requests for both protective and special measures.22 For example, ICC-01/04-01/07-1795-Red-tENG 03-12-2010 1/7 RH T, “Decision Granting Protective Measures for Witness 323 during In‐Court Testimony”23 For example, ICC-02/05-02/09-137-Red 09-10-2009 1/5 IO PT, "Decision on the Defence's application for protective measures dated 2 October 2009"24 Article 68(1) Rome Statute. In the case of vulnerable witnesses and victims, in particular but not limited to crimes of sexual or gender violence or violence against children or because of their age, health and gender. 25 The cases of exception of the public hearings in the cases of victims of sexual violence or child victims or witness, unless the Court orders otherwise, having regard to all the circumstances, in particular the views of the victim or witness, then the hearings should be in camera or the presentation of evidence should be by electronic or other special means.

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as well, that they should respond. When the Chamber initiate protective measures on its own motion all the parties, include affected by the protective measure witness, should be notified and may respond. Finally, a motion or request may be filed under seal.

Sub-Rule 3 provides five different types of preventive measures that the Court can order inter alia on a motion or request by holding a hearing in a camera and to prevent the release to the media, press and other information agencies the identity or the location of a victim, a witness or other person at risk on account of testimony given by a witness. First, the Court can order expunging of its records the name of the victim, witness or other person at risk on account of testimony given by a witness or any information which could disclose his or her identification.26 Second, the Prosecutor, the defense and all the participants in the proceedings are prohibited to disclose such information.27 Third, the testimonies might be presented by electronic or other special means, including the use of technical means without pictures or voice, use of audio-visual technology, in particular videoconferencing and closed-circuit television, and the exclusive use of the sound media.28 Forth, usage of a pseudonym for a victim, a witness or other person at risk on account of testimony given by a witness and fifth, conducting part of the proceedings in camera.29

b. Rule 88, Special Measures

The Rule is principally descendent of Article 68(2) of the Rome Statute with regard to the vulnerable groups. It provides special measures particularly to facilitate the testimonies of traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to Article 68(1) and (2). To be ordered special measures a request is needed. Such a request may be made by the Prosecutor, the defense, witness, victim and his/her legal representative, if any or a Chamber can initiate special measure on its own motion. Ordering a special measure under Rule 88, a Chamber should try to obtain the consent of the person who is the object of certain special measure. The Victims and Witnesses Unit has only a consultative function as in Rule 87. The testimony of the person concerned must be given pursuant Article 68(1) and (2) as referred in the Rule.30 By making an order for special

26 For example, ICC-01/04-73 22-07-2005 1/6 UM, “Decision on protective measures requested by applicants 01/04-1/dp to 01/04-6/dp” 27 By breaching such an order Article 71 of the Rome Statute would apply to anyone who breached the Court’s order. 28 This protective measure particularly elaborates Article 69(2) of the Rome Statute29 For example, ICC-01/04-01/07-1795-Red-tENG 03-12-2010 1/7 RH T, where the Prosecutor requests for the following protective measures: (i) the witness continue to be referred to by his pseudonym during his testimony; (ii) that image and voice distortion be applied; and that (iii) those parts of the testimony which could identify him be given in closed session. Trial Chamber II granted the protective measures.30 For example, ICC-01/05-01/08-800-Corr-Red4 06-07-2010 1/16 RH T “Prosecution’s Request for Protective and Special Measures for Prosecution Witnesses at Trial”, where the prosecutor requests the Trial Chamber III for the following special measures under the numbers (iv) and (v) , as well as the requested protective measures: (i) image and voice distortion; (ii) continued in-court use of witness numbers and pseudonyms in lieu of names; (iii) closed sessions for the entire testimonies of three witnesses; (iv) limited closed sessions for those brief portions of testimony wherein the witnesses provide information that would identify victims of rape, sexual violence, or related crimes (hereinafter broadly referred to as victims of sexual violence)2 and; (v) that victims be accompanied, as they choose, by a psychologist, a trustworthy person, or family member at trial in accordance with Rule 88 of the Rules.

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measures the Court must take into account the accused rights, as well as the fairness and impartiality of the trial.

A different procedure for making an application for a special measure is presupposed in Rule 88 than the one in Rule 87. Unlike the latter, Rule 88 allows applications made on an ex parte basis or in camera. Moreover, the presence of a counsel, a legal representative, a psychologist or a family member might be permitted to attend during the testimony of the victim or the witness. For inter partes application applies the procedure in Rule 87, Sub-rule 2 (b) to (d).31 A motion or request, or any responses may be filed under seal.

Subparagraph 5 gives a special attention to victims of crimes of sexual violence and by trying to avoid any violations on the privacy which may put at risk the security of a witness or victim, the Chamber will control the manner of questioning so as to avoid any harassment or intimidation.

The role of the Victims and Witnesses Unit (VWU)

Article 43(6) of the Rome Statute, provides for the creation of this special statutory organ with a fundamental importance within the Registry. Its importance is determined by the services and measures for protection which the Unit provides either to the witnesses of the prosecutor and to the witnesses of the defense during the investigation, pre-trail, trial and post-trial proceedings. Beneficiaries of the provided protective measures and assistance are the witnesses, others who are at risk on account of testimony given by such witnesses, victims who appear before the Court.32 However, the Unit provides its services to witnesses who come to testify in the Court and to those who give their testimony other way, allowed by the Rome Statute or its Rules of Procedure and Evidence.33 The need for protection and security

31 Ibid32 So far there is not a legal definition of victims and witnesses in the Rome Statute, therefore in A Discussion Paper by Thordis INGADOTTIR, Françoise NGENDAHAYO, Patricia Viseur SELLERS, ICC Discussion Paper # 1 March 2000, p. 15, Para 2, is provided the following: “According to article 21 of the Rome Statute, the application and interpretation of the statute must be consistent with internationally recognized human rights. A footnote made in Rome with article 68.1 comments that “[d]elegations took the view that the protective measures contemplated by this article are intended to be afforded to witnesses, to victims (who are not witnesses) directly connected with an investigation or proceedings before the Court and to other persons who are at risk on account of the testimony given by such witnesses. Some delegations did not agree with this"; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Report of Working Group on Procedural Matters, A/CONF.183/C.1/WGPM/L.2/Add/8, note 3. Another footnote with article 68 comments that “[I]n the exercise of its powers under this article, the Court shall take into consideration the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”; id. note 5. For the purposes of interpretation of the term victim in article 75 (reparations to victims) the drafters of the Rome Statute referred to the definitions contained in the text of article 44.6 of the Rome Statute, art. 68.1, and its accompanying footnote, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and the Revised Draft Basic Principles and Guidelines on the Right to Reparation for Victims of gross violations of human rights and humanitarian law; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the whole, Working paper on article 73, UN Doc. A/CONF.183/C.1/WGPM/L.2/Add.7, note 5. A definition based on the same principles was submitted to the Preparatory Commission for the International Criminal Court in the Report on the international seminar on victim's access to the International Criminal Court, UN Doc. PCNICC/1999/WGRPE/INF/2, Annex I, Rule X.”33 Article 69(2) The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the

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arrangements starts as soon as an investigation is initiated.34 According to Article 54(3)(f) the Prosecutor may take or request for necessary measures: “to ensure the confidentiality of information, the protection of any person or the preservation of evidence”, therefore such measures might be taken on the field with regard to the security of the potential witnesses, but the Victims and Witnesses Unit should involve only on request of the Prosecutor. The most important role of the Victims and Witnesses Unit follows the Trial stage, concerning mostly the logistics and the arrangements of the witnesses whereabouts in The Netherlands. Moreover, protective measures are needed also after the trial when they return to their countries, therefore the Unit must keep notice of any security risk for the witnesses or if a need for relocation arises.35 Other than the above mentioned issues the Victims and Witnesses Unit has statutory recognized support functions, such as administrative, travel and medical.36

International Criminal Court’s Protection Program (ICCPP)

The Office of the Prosecutor is the one which establishes the first contact with the witnesses in the field. It is important on this early stage to be recognized the need for participation in the ICCPP. The Prosecutor is the body who decides on the participation in this program with regard to the seriousness and the immediate nature of the threat. By doing this the Prosecutor should provide the VWU with all the necessary information that brings up the believe that the applicant should be considered for the ICCPP. The Prosecutor may trigger at any time a procedure for assessment of VWU and all the full range of the possible protection measures are discussed. On the other hand VWU assesses the risk independently with regard to the interests of the person concerned and under condition that the latter gives his/her informed consent to be assessed as well as acceptance of the conditions of the ICCPP.

In cases where the level of risk indicates that an alternative risk management approach will suffice, it might be opportunity for other protection strategies. It is possible, while the assessment is pending that the Prosecutor agrees a witness to be placed temporary in a safe house. Any recommended measure for protection is based on the analyses of the information provided by the referral body, interview of witness and his/her family members, as well as other relevant information. The recommended measure is proportional to the risk and the purpose is to be as much as less intrusive in the life of the individual. When the Registrar receives the VWU reports and recommendations and the information provided by the referral body, it makes a final decision on the appropriate protection measure. On the other hand the Prosecution can review the decision of the Registry. If there is not agreement between the Registry and the Prosecution, the latter may request the competent Chamber to order

accused.34 In ICC-01/04-01/07, Date: 12 June 2008 the VWU makes an important considerations on the system of witness protection and the practice of "preventive relocation" and its scope: “In order to facilitate a fair and expeditious trial the Court needs a protection regime that adequately addresses the risk faced by witnesses, victims appearing before the Court and others at risk on account of testimony due to their interaction with the Court. It is therefore of crucial importance for the Court as a whole to determine how such risks are identified, assessed and mitigated. Predictability and transparency of the applied measures are an important factor in ensuring a fair and impartial system of witness protection.”35 All needs for a normal living must be arranged by the Unit.36 The Victims and Witnesses Unit (Article 43 of the Rome Statute), A Discussion Paper by Thordis INGADOTTIR, Françoise NGENDAHAYO, Patricia Viseur SELLERS, ICC Discussion Paper # 1 March 2000

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protection measure by making a judicial control of the actions taken by the VWU and the Registry. The rejection of an application for admittance to the ICCPP is not an absence of protection for the witness.37

III. Comparison between the Bulgarian criminal justice system and the International Criminal Court.

The concept and the extent of protection excepted by the Bulgarian CCP in Article 123 is narrower than the one in the Rome Statute in Article 68. While the Bulgarian witness protection spreads upon “the life, health or property of witnesses”, the protection in the Rome Statute concerns “the safety, physical and psychological well‐being, dignity and privacy of victims and witnesses” and is more oriented to the individual and high human values as the human dignity and not only the physical, but also the psychological well-being which may have many dimensions. The wording of the Article 68 of RS is oriented more philosophical and gives place for discretion of the Court, while Article 123 of CCP is precise and clear in its specification on the terms of the values which aims to protect. While the Bulgarian CCP gives protection to all witnesses at risk, regardless their personality, the Rome Statute gives more attention to vulnerable groups as witnesses and victims of “sexual or gender violence or violence against children”, attention is given, as well to their age, gender and health. This is an interesting and wise approach because, so far in Bulgarian CCP nowhere is mentioned what happens and how should be protected a child or a woman, witness or victim of a sexual or gender violence if appear before the court. Unfortunately, there has never been paid a special attention to the women and children, even though that Bulgaria is a State Party to important conventions as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child. There is no personal approach neither from the magistrates and the police, there is not enough information available how to proceed and what to expect in exercising the rights of the witnesses during the proceedings. May be it is time for Bulgaria to provide such vulnerable groups with relevant information on their rights. Indeed, the lack of information may be considered as a complication in exercising the right of witness protection. Moreover, it may arise to a lack of the legislation.

Another issue is the “consent” of the individual. While Article 68 of the Rome Statute provides that the Prosecutor and a Chamber may apply for measures for protection, seeking for the consent of the person concerned but a consent is not absolutely required for ordering protection, in Article 123 of CCP the consent is an absolute prerequisite. The question is what happens to the person who does not agree to be protected? There should be included a scenario in CCP when the authority body takes over the power to make a decision to enforce witness protection. Moreover, if the application comes from a witness seeking protection, he/she must provide evidences in support of the requirements of Article 123 CCP, that as a result of the testimony there must be sufficient grounds to assume that a real threat has arisen

37 ICC-01/04-01/07, Date: 12 June 2008, “Victims and Witnesses Unit's considerations on the system of witness protection and the practice of "preventive relocation"”

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or may arise and a causal link between the testimony and the occurrence or probability of the threat. Shall the endangered witness prove the existence of a threat him- or herself? If the answer is positive, the obligation of the police, the prosecution and the court to identify and prevent the threat using all the possibilities provided in CCP, as well as the measures for protection of witnesses and to protect his/her life, health and property is therefore, excluded and contradicts important principles of the Code. Bulgarian CCP is not clear and excludes scenarios which might lead to a negative impact over the life, health and the property of a witness.

The obligation for protection is very similar in both systems as enshrined to the Prosecutor and a Chamber in ICC, and to the Prosecutor, the Judge-raporteur and the Court in Bulgaria. The respective authorities from ICC have discretionary power in providing protection over victims and witnesses than those in the Bulgarian justice system who are limited by the word of law and has no such power. The institute of the Victims and Witnesses Unit, as an advising body is not recognized by CCP.

Measures for victims and witness protection pursuant Article 68(2) and (5) of the Rome Statute and Article 123(2) and (7 )of CCP

Article 123(2) provides such a measure for protection as the “personal physical protection by the authorities of the Ministry of Interior” which does not exist in the Rome Statute. Providing a measure which requires a serious preparation and knowledge seems to be good on paper.

The other measure for protection is keeping the identity of the individual secret, which is more thoughtful but may lead also to some complications as lack of the accused rights to question the witness in the court hearings. Article 68 RS, on the other hand does not include such a measure but so far, it is not unusual in ICC. Instead of non disclosure of the identity of a witness, Article 68 RS provides non disclosure of evidence or information by the Prosecutor. This might be a witness testimony, represented as a summery in the Court. In fact, by keeping the identity of the person in secret as in Article 123 CCP does not presuppose representation of his/her testimonies as a summery.

Both, in the Rome Statute and in CCP using of special means is recognized as a measure for protection. Here stop the similarities. In the first jurisdiction using special means is to present evidences by use of audio-visual technology, in particular videoconferencing and closed-circuit television, and the exclusive use of the sound media. In Bulgaria the using special intelligence means is determined by the threat and its elimination, and to do so are made films, video, sound records, photographs and marked objects, monitoring, wiretapping, tracing out, infiltration, marked examination of correspondence and computerized information, controlled delivery, trust transaction and investigation by an undercover officer are used. This leads to a huge impact of the individual’s right to privacy.

As to the hearings conducted in camera in Article 68 as a measure for protection of the Rome Statute is an exception of the principle of public hearings and is not provided by Article 123

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CCP. The same principle exist in the Bulgarian criminal justice system as well, and there are some exceptions of this principle when approved as a procedure in CCP.

An important issue to a further elaboration is the presumption which makes Article 68 RS by providing that proceedings conducted in camera, as well as presenting evidences by electronic or other special means is mandatory: “in the case of a victim of sexual violence or a child who is a victim or a witness.” It is needless to say that in such cases a consent from the individual concerned is not needed, while the ruling of Article 123 CCP says the opposite, that a consent is always required.

Anyway, Bulgarian legislator should give a special attention to the legislation of other national jurisdictions when comes to the question of measures for protection. There should be included in CCP other measures for protection of witnesses, which have more practical use on a case-by-case basis as: protect the witness with a screen during court hearings, giving evidence by video or other special means, give evidence in writing, secretly giving evidence, deletion of the name and personal data of the witness, temporary protection etc.

Measures for victims and witness protection pursuant Rule 87 and 88 of the Rules of Procedure and Evidence, and the Bulgarian APITRCP

While the measures for protection pursuant Rule 87 and 88 of the Rules of Procedure and Evidence elaborate the measures provided by Article 68 RS, as well as the procedure for application, these in APITRCP have a different ruling for their application than Article 123 CCP. Rule 87 and 88 of the Rules of Procedure and Evidence distinguish two types of measures - protective and special. More specifically they determine the application form and against whom the measures appear to spread. The protective measures provide prohibition for ex parte application, because this rule is entitled to protect from the media and the public, while the special measures allow both ex parte and inter partes application. They provide restriction to confidential information about the witness or victim from the defense, the opposite apply, as well. The special measures are oriented more specifically to the vulnerable groups. On the other hand, the measures in APITRCP apply to all kind of witnesses and their families and are on ex parte basis.

The role of the Victims and Witnesses Unit (VWU) and the Office for Protection of People at Risk

The special measures of personal physical protection, security of property, temporary accommodation in a safe place, change of place of residence, place of work or school, or placement in another place of custody and change of identity fall under the ruling of the Bulgarian APITRCP and can be applied only within the “Protection program” of Office for Protection of People at Risk. The latter is a decision making body within the Ministry of Justice of Bulgaria pursuant APITRCP and has no advisory or other functions pursuant Article 123 CCP. On the other hand the Victims and Witnesses Unit of ICC has advisory functions throughout the proceedings for application for measures for protection pursuant Article 68 PR and Rule 87, and 88 of the Rule of Procedure and Evidence, and together with

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the Prosecutor and/or a Chamber decide for involving victims and witnesses in the International Criminal Court Protection Program. While the first is independent body and has the power to make decisions, the second is not and has advisory functions. Either, to involve in the Bulgarian Protection Program and in the Protection Program of ICC a consent of the individual is required. This is understandable approach with regard to the measures for protection and their impact in his/her life and the restrictions which could be enforced to the right to free movement, to freedom of expression, confidentiality etc. In practice the protection programs work very well because of the large number of high qualified personnel involved and their existence encourage the witnesses and victims to appear either before Bulgarian Courts and ICC.

Conclusion

Each of the steps taken by the Bulgarian criminal justice system for protection of witnesses are still in the phase of development, either because of the lack of appropriate measures for protection on a case-by-case basis and because of the inquisitorial character of the system, thus, the authorities cannot apply in their decisions the best practices of the case law. However, the existence of the institute of the witness protection and the membership of Bulgaria in the European Union presuppose adopting of the practices of the other member states and their experience in the sphere of the witness protection in the fight with the organized crimes. On the other hand the ICC has the existing experience of the other tribunals and their practices, as well as the practices of the case law produced through the years and the capacity of work of the Court. In order to support, protect and assist victims and witnesses who come to testify before the Court the creation of different proceedings and measures for witnesses and victims protection comply with the tasks for adequately provided protection. The special treatment of the vulnerable witnesses and victims and the presumption for the immediate application for protection is another asset in the system of ICC which could be an example in the future steps that Bulgarian legislators may take in their attempt to provide sufficient protection for its witnesses. The existence of the Victims and Witnesses Unit and the Office for Protection of People at Risk, respectively in ICC and in the Bulgarian system and the protection programs forward to the conclusion for the willingness of the creators of the legislation for ICC and Bulgaria to provide witnesses and victims with appropriate help in order to their best representation in the Court in the fight against the crimes.

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Documents

Comparative analysis of witness protection within the ICC …intralegalis.com/gallery/essay-comparativ… · Web view · 2014-04-29Witness protection has a great importance in