C Explanatory memorandum by Mr Gardetto,
rapporteur
1 Introduction
1. On 31 January 2008, members of the Parliamentary
Assembly submitted a motion for a resolution on the protection of
witnesses as a cornerstone for justice and reconciliation in the
Balkans (
Doc. 11522).
The Committee on Legal Affairs and Human Rights appointed its rapporteur
on 2 June 2008.
2. It may be useful to describe the different stages in the preparation
of this report. On 8 and 9 April 2009, the rapporteur visited The
Hague where he had discussions with officials from the International
Criminal Tribunal for the former Yugoslavia (“ICTY” or “the Tribunal”).
The purpose of this visit was to understand the issues that the
ICTY has to deal with in the concluding phase of its work, as well
as the difficulties that the imminent closure of the Tribunal might
entail with regard to the efficiency of the international protection
system for witnesses appearing before it.
3. Subsequently, in the spring of 2010, the rapporteur visited
Zagreb (Croatia), Belgrade (Serbia), Sarajevo (Bosnia and Herzegovina)
and Pristina (Kosovo) to broaden his understanding of the situation.
Note He spoke to numerous
government members and officials, members of parliament and of the
judiciary, representatives of the field missions of the ICTY, the
European Union and the Organization for Security and Cooperation
in Europe (OSCE), as well as representatives of non-governmental
organisations.
4. These different stages are evidence of the care with which
this report has been prepared.
5. Back in 2007, the Assembly produced a report on the prosecution
of offences falling within the jurisdiction of the International
Criminal Tribunal for the former Yugoslavia.
Note The
report assessed, among other things, national jurisdictions and
their capacity for trying war crimes. In this context, it looked
at witness protection and support and explained how witnesses were
not being adequately protected in trials taking place in national
jurisdictions, partly due to gaps in legislation but also due to
procedural difficulties. In
Resolution 1564
(2007), the Assembly called upon national governments
to “improve the protection of witnesses at national level and co-ordination
at regional level and clarify the legal safeguards”.
6. In this report, the Assembly also underlined that “so far
only a tiny proportion of those responsible for war crimes have
been brought to justice. No matter how long and painful the reconciliation
process may be, more efforts are still required”. The time has come
for the national courts of the states concerned to take over from
the Tribunal and prosecute those responsible for war crimes who
have not yet been brought to justice. This work has already begun
at national level where the national courts face a very large number
of war crime cases.
Note In this context, the protection
of witnesses – the key actors in the prosecution of war crime cases
– is a highly acute matter.
7. Due to the time that has elapsed since the events occurred,
material elements for prosecution have generally disappeared in
war crime cases regarding the Balkans war at the end of the 1990s.
Witnesses are therefore essential in order to find out the truth
and prosecute the criminals. They are a key element in the work of
justice, and such work is essential to avoid impunity, reinstate
trust in the region and contribute to the reconciliation process
in the Balkans.
8. Given the fact that due to numerous threats, potential witnesses
might finally decide not to testify before the national courts of
the states concerned, the present report assesses the current witness
protection and witness support systems in place in the countries
that have to deal with the highest number of cases or in which this
issue is especially acute, namely Bosnia and Herzegovina, Croatia,
Montenegro, Serbia and Kosovo, and compares these systems to the
standards that have been set by the ICTY.
9. The material collated by the rapporteur on his visits to the
region has been of great value, both qualitatively and quantitatively.
The rapporteur found that the systems currently in place do not
always provide adequate protection to the witnesses involved in
prosecutions of war crimes (and of organised crime) in national
courts. The consequences range from the identity of protected witnesses
being revealed in Croatia, witnesses being threatened and intimidated
in Bosnia and Herzegovina, witnesses who are on the point of testifying
being assassinated in Kosovo, etc.
10. Improving the protection of witnesses at national level and
co-ordination at regional level are crucial elements for the success
of the work of justice and the effective implementation of the law.
At the same time, witnesses need to be given support, as appropriate,
before, during and after the trial to ensure that they feel comfortable
delivering their testimonies. Indeed, fear is not always based on
a physical threat, many witnesses are victims or survivors of atrocities
– retelling their tale is often a psychologically traumatic process
that requires support. Similarly, the rapporteur was informed by
many of his interlocutors that there was a general fear of being
perceived as a traitor, especially among those who have served in
the armed forces or the police.
2 Defining the terms
2.1 Witness protection
11. A witness is any person who possesses information
relevant to criminal proceedings about which he or she has given
and/or is able to give testimony (irrespective of his or her status
and of the direct or indirect, oral or written form of the testimony,
in accordance with the national law).
Note
12. Although the European Convention for the Protection of Human
Rights and Fundamental Freedoms (“ECHR” or “the Convention”) does
not mention the protection of witnesses specifically, the European
Court of Human Rights (“the Court”) has started to build a body
of case law on witness protection in relation to several articles
of the Convention: the obligation of the state to protect life (Article
2); the obligation of the state to protect the right not to be subjected
to inhuman or degrading treatment when giving evidence (Article
3); and the right to respect for private and family life (Article
8). The Court has always balanced these rights against the right
of the defendant to a fair trial (Article 6).
Note
13. The Council of Europe has been active in promoting standards
on witness protection across its member states. There have been
a number of recommendations of the Committee of Ministers dealing
with the issue. Specifically: Recommendation R(97)13 concerning
intimidation of witnesses and rights of defence, which, inter alia,
recognised the need to protect witnesses prior to, during and after
the trial; and Recommendation Rec(2005)9 on the protection of witnesses
and collaborators of justice, which
urged member states to improve protection afforded to witnesses.
The latter recommended the types of measures that should be available
and called for increased international co-operation in the field
of witness protection.
14. Many states have adopted witness protection programmes in
some form or another, but they vary greatly in the level of protection
they afford to witnesses. Some schemes are limited to being enshrined
into law but are little more than a paper exercise, not backed by
financial resources or practical measures to effectively protect
the witness, whereas other programmes greatly assist the authorities
in combating organised crime.
Note
15. The types of measures that can be used are wide-ranging: starting
from pre-trial measures such as placing a witness in a safe house
or obtaining an injunction against the accused to prevent him or
her from intimidating the witness, to protection during the trial
which includes such measures as removing the defendant from the
courtroom while a witness gives evidence and using video-conferencing
technology. The threat to a witness might be so severe that the
use of anonymous testimonies may be necessary. This can be done
by giving a witness a pseudonym or using voice-distortion technology.
Note More extreme
(and costly) protection measures include changing the identity of
the witness following the trial and relocating him or her to another country.
16. Witness protection measures should be grounded in binding
legislation as they can cause serious disruption to the life of
the witness and may affect the defendant’s right to a fair trial.
Note In its good practice study, the
United Nations Office on Drugs and Crime recommends that an autonomous
authority, separate from the police or those investigating the crimes,
be established to oversee witness protection programmes and that
the necessary funds be allocated to it. This is essential to guarantee
proper scrutiny of the system and co-ordination of all the different
programmes that may need to be implemented, including perhaps the
allocation of new housing and psychological support for the witness.
17. For witness protection measures to function properly, allegations
of witness intimidation have to be properly investigated. Measures
also need to be in place to punish those people who put protected
witnesses at risk. The ICTY has brought legal proceedings against
a number of people for revealing the names of protected witnesses
and placing them in danger. In contrast to this approach, the rapporteur
was given many examples across the region of the former Yugoslavia
where the authorities have refrained from punishing those who had
publicly (for example, via their own websites!) disclosed names
of protected witnesses.
2.2 Witness support
18. A discussion on witness protection is incomplete
without reference to witness support. Providing a witness statement
to the police or a court is often traumatic for a victim or witness.
It involves having to recall and relive experiences which in the
majority of cases are harrowing and painful. For many witnesses,
providing a testimony at court is their first experience of the
criminal justice system. This is often a daunting process, especially
for those witnesses who feel threatened or are frightened of the
consequences of providing a testimony. Victims and witnesses in
war crime cases are particularly vulnerable due to the nature of
the crimes involved.
19. The rapporteur considers that victims and witnesses need some
form of support before, during and after providing testimonies.
If this type of support is not provided then the risk is that witnesses
will not come forward, will provide incomplete or inadequate testimonies
or that secondary victimisation
Note occurs.
20. The type of support needed will always depend on the individual
and the vulnerability of the witness, but support programmes should
be seen as an essential service and part of the proper administration
of justice. States should provide services for the support of witnesses
and encourage and facilitate the work of non-governmental organisations
in assisting witnesses
Note before, during
and after the trial.
Note
21. Through the investigation process and before trial, law enforcement
officers must question witnesses sensitively; witnesses must be
provided with information on their rights and what protective and
support measures are available to them. They must also be provided
with psychosocial support, including therapy and counselling, where
it is needed. This can be delivered either through state programmes
or by specialised staff from NGOs.
22. It is important that some support be provided to witnesses
when they go to court to deliver their testimonies. At the very
least, a member of staff should be there to help the witnesses and
explain where they need to go. There should also be staff to provide
psychological support during breaks in the trial.
23. Court facilities also need to be fit for purpose. Where possible
there should be separate entrances to the court for witnesses and
a separate room where they can go to wait to be called into trial.
It is also imperative that witnesses feel comfortable while giving
their testimony. The trial chamber should be set up in such a way that
the witness is not made to feel intimidated by the accused.
Note
24. In general, the rapporteur found that support for witnesses
in the region is often neglected post-testimony. Yet this is precisely
where the risk of secondary victimisation is most prevalent and
witnesses are often left feeling (re)exploited, which can have the
effect of discouraging other potential witnesses.
3 Witness protection and support at the International
Criminal Tribunal for the former Yugoslavia
25. Witness testimonies have been fundamental to the
functioning of the ICTY. By their testimony, witnesses make an essential
contribution to the work of justice, to the fight against impunity,
to restoring the confidence of the people in the authorities and
thus to reconciliation in the region. Their testimony not only forms
the basis of the Tribunal’s judgments but also reveals the truth
about the crimes committed to those who live in the region and to
the international community. The ICTY has done pioneering work in
setting standards on witness protection and support. Judges have
based their rulings mainly on oral testimony, which is thus an essential element
in the proper performance of the Tribunal’s duties. It is vital
for witnesses and victims to be able to testify in safety.
26. The rapporteur has described extensively in a separate memorandum
the system for protection of witnesses appearing before the ICTY.
This document has since been declassified by the committee and is available
on the Assembly’s website.
Note The
rapporteur considers the information therein as being an integral part
of his report and will not repeat it here (although he will use
it to underpin certain recommendations).
27. The rapporteur wishes, however, to underline certain limits
of the witness protection measures put into place by the ICTY.
28. During his visits to the region of the former Yugoslavia,
the rapporteur was informed that the protection given to witnesses
by the ICTY before and after the trial is rather poor. There is
only one field presence of the Victims and Witnesses Section (hereafter
“the Section”), which is based in Sarajevo and counts on only two members
of staff (exclusively working on this issue and supported by personnel
based in The Hague who travel to the region regularly) to provide
witness protection and support to the whole region. The rapporteur
was told that the Section did not liaise with the police forces
in the region to ensure that witnesses were protected before going
to The Hague to testify.
Note The rapporteur was disturbed
to hear about one witness who decided not to testify in one case
at the ICTY because he felt that the protection measures he was
granted were not strong enough.
29. Furthermore, one NGO told the rapporteur about an incident
where a woman – who had testified for rape in the Dragoljub Kunarac
trial in The Hague – was seated near defence representatives on
her flight home. This panicked the woman and demonstrated poor logistical
planning and a disappointing lack of post-trial protection in this
case.
30. There is also a wider problem of protecting witnesses who
are allowed to testify anonymously. The right to know the identity
of a witness testifying against a defendant, like his or her right
to cross-examine that witness, are part of the basic rights of the
defence,
Note laid
down in the Rules of Procedure and Evidence of the ICTY. Thus, all
those present in court know the witness’s identity (even when protection
measures have been put in place to keep his or her identity secret).
The Prosecutor has a duty to disclose the identity of an anonymous
witness to the parties thirty days prior to the trial. The rapporteur
notes that the relevant legislators in all of the countries in the
former Yugoslavia have incorporated this provision into their laws.
Note
31. If a party reveals the identity of a protected witness or
divulges any information whereby he can be identified, he is liable
to prosecution for contempt of the Tribunal and to a sentence of
up to seven years’ imprisonment and/or a fine of €100 000.
32. As indicated in the rapporteur’s memorandum, this is no mere
academic point.
Note Regardless
of the sanctions pronounced by the ICTY in this regard, the fact
that the defence has an automatic right to know the identity of
the witness means that it is revealed to the very person from whom
the protection measures were designed to protect the witness. This
could lead to reprisals at a later date or, indeed, as has been
highlighted in the cases mentioned in the memorandum,
Note intimidation
of a witness and of his or her family. This can even go as far as
the murder of a witness or of a member of his or her family. The
rapporteur was told that this provision has caused problems for
prosecutors in the countries of the former Yugoslavia, because when witnesses
find out that their identity will be revealed to the defence, they
subsequently refuse to testify
Note or at the
very least they have to be convinced again. Moreover, some witnesses
have to go through the traumatic experience of being relocated,
which could be avoided if, in extreme cases, the identity of witnesses
could be kept anonymous.
33. It cannot be seen to be in the interest of justice for the
identity of all anonymous witnesses to be revealed to the defence.
Although the rapporteur believes that it is fundamental to ensure
the right of the defendant to a fair trial, this must be balanced
against the right of the witness to be protected. There have been
a number of judgments from the European Court of Human Rights on
this issue which have established that concealing the identity of
the witness from the defendant, where the witness fears reprisals,
is not necessarily a violation of the right of a defendant to a
fair trial, as long as the defendant or his or her lawyer has the
opportunity to put questions to the witness. The Court emphasised
that safeguards must be put in place and that a conviction should
never be based solely – or to a decisive extent – on the basis of
an anonymous statement.
Note
34. In cases where revealing the identity of the witness puts
that person at a disproportionately high risk, the rapporteur suggests
that the use of a “special advocate” – independent of both the prosecution
and the defence – may be an appropriate safeguard. A “special advocate”
could analyse the anonymous evidence, take instructions from the
defendant and make representations on behalf of him or her as to
the worth of these statements.
Note
35. In the light of the long-term commitment of the ICTY to its
own witnesses, the Assembly, in its
Resolution 1564 (2007) on the prosecution
of offences falling within the jurisdiction of the ICTY, has encouraged
the United Nations to set up a residual mechanism “with a view to
continuing to maintain witness protection after its mandate ends”.
36. Such a mechanism should give the judges the ability to rule
on protection measures in the context of procedures after the trials,
and on cases of contempt of the Tribunal (in the event of violation
of witness protection measures). Such a mechanism should make it
possible to perpetuate the principle of regular assessment of the
existing threat to protected witnesses. A permanent point of contact
with protected witnesses (inter alia to
answer their questions, to warn them of the release of certain convicted
persons or to enable them to report any new threat to them), but
also with states which have entered into relocation agreements with
the ICTY, should remain operational. Lastly, such a residual mechanism
should provide for the possibility of reviewing and reassessing
the necessity for maintaining a witness’s relocation or, on the
other hand, the possibility of terminating it.
37. The United Nations Security Council might contemplate entrusting
such a mechanism to the International Criminal Court or creating
an independent entity (possibly, in the end, in the form of an entity common
to the ICTY and the International Criminal Tribunal for Rwanda).
The solution of integrating the residual mechanism into the existing
system of the International Criminal Court would probably be less
costly and more sustainable.
38. Witnesses have played and continue to play an essential part
in the campaign to ensure that war criminals, particularly in the
Balkans, do not go unpunished. They are key players in the implementation
of the ICTY’s mandate. The Tribunal has a long-term moral, indeed
even legal, commitment to them. Witnesses must have the right to
continuing access to the international protection system under the
umbrella of which they testified, even after the ICTY’s work is
finished. If this right were flouted, it would not be surprising
if persons agreeing to testify before international tribunals became
increasingly rare.
39. The credibility of the United Nations and of international
justice as a whole requires that an effective residual protection
mechanism for witnesses be set up, and should endure when the mandate
of the ICTY ends.
4 Adequacy of witness protection and support programmes
in the Balkans
4.1 Bosnia and HerzegovinaNote
40. In Bosnia and Herzegovina, many witnesses in war
crime cases reportedly complain that they or their family members
have been threatened, offered a bribe or subjected to intimidation.
Note Such witnesses are therefore
reluctant to testify.
4.1.1 Legislation
41. Bosnia and Herzegovina has ratified a number of international
and European conventions that protect the rights of victims and
witnesses, including the right to life, liberty and security, and
respect for private and family life. The main domestic provisions
relating to witness protection are contained in the Criminal Procedure Code
of Bosnia and Herzegovina,
Note the Law on the protection
of witnesses in danger or at risk,
Note the
Law on the witness protection programme of Bosnia and Herzegovina
Note and
the Criminal Code.
42. The Criminal Code provides special measures for the protection
of vulnerable witnesses, including the exclusion of the public from
the trial. Measures can also be imposed to prevent the suspect or
the accused from unduly influencing the witness, by imposing a restraint
order or other orders to ensure that they remain in their place
of residence. Under the Criminal Code, it is an offence to disclose
the identity of a protected witness.
43. The Law on the protection of witnesses in danger or at risk
contains provisions enabling witnesses to testify via video-link,
the removal of the accused from the courtroom and additional measures
to prevent disclosure of the identity of the witness. Similar laws
have been adopted at the entity level.
44. The Law on the witness protection programme is only applied
at the state level. It provides for witnesses to be placed under
a programme, with their consent, to guarantee their safety during
the criminal proceedings. It includes measures to change the identity
of and to relocate a witness. However, as has been reported to the rapporteur,
so far the law has never been applied. It is likely that the cost
of using such a measure is one of the reasons for this. It is usually
the sender country that has to bear the costs of relocating a witness
to another state. The rapporteur feels that for a relatively poor
country like Bosnia and Herzegovina, this might not always be possible
and is extremely inhibiting.
45. Generally speaking, the provisions contained in these codes
and laws, if used properly, could go a long way towards protecting
the life, security and privacy of witnesses. However, there are
many problems with their implementation both at the state court
and at the entity level.
4.1.2 The court system
46. The War Crimes Chamber of the State Court of Bosnia
and Herzegovina was established on 9 March 2005 as a joint initiative
of the ICTY and the Office of the High Representative.
Note The Chamber’s mandate
is to try mid- to low-level perpetrators referred to it by the ICTY.
It also tries war crime cases that have been initiated locally.
47. Nevertheless, the War Crimes Chamber has a relatively small
budget and does not have the resources or time to hear all war crime
cases. It therefore only handles the most serious and highly sensitive
ones. The domestic courts under the jurisdiction of the entities
deal with the remaining cases.
48. The rapporteur wishes to highlight a problem that has been
drawn to the Assembly’s attention previously and which has an impact
on the trial of war crime cases and witness protection in Bosnia
and Herzegovina.
Note The
judicial authorities of the state operate totally independently
of those of the entities. The result is that the Court of Bosnia
and Herzegovina does not have the same jurisdiction as a state supreme
court would have because the entities have their own supreme courts.
Note The rapporteur believes that legal harmonisation throughout
Bosnia and Herzegovina is necessary in order to secure certainty
of the law and that the Court of Bosnia and Herzegovina should therefore
have the powers and jurisdiction of a supreme court, or alternatively that
such a supreme court should be established.
Note
49. The jurisdictions are arranged differently from region to
region. In the Federation, the municipal courts try less serious
crimes than the cantonal courts. In Republika Srpska, the municipal
courts exercise jurisdiction over less serious offences. In the
Brčko District, the basic court handles serious offences.
50. When in Bosnia and Herzegovina, the rapporteur had the feeling
that the amount of levels and the complexity of the judiciary make
it difficult to get a clear picture of the system, both for the
general public and for external observers. Moreover, the rapporteur
got the impression that the system makes it easy for his interlocutors
to pass their responsibilities on to someone else and to pass the
buck, which is contrary to the interests of the general public and
the proper administration of justice, and makes the reorganisation
of the judicial system in Bosnia and Herzegovina necessary.
4.1.3 Witness protection
51. Although witness protection measures are described
in detail by law, in practice witness protection is inadequate in
Bosnia and Herzegovina. In a recent report,
Note the OSCE found that the authorities had
failed to investigate allegations of death threats diligently. In
many cases, witnesses have reported that they or their family members
have been threatened, offered a bribe or subjected to some form
of intimidation.
Note
52. Where witnesses have been found to be in need of protection,
there is often a failure to apply any protection measures or to
apply them effectively. Witnesses who have been given pseudonyms
to conceal their identity, for example, have complained about receiving
summonses through the ordinary post. This renders the protection
measures ineffective because the local community is able to find
out that the person has been asked to testify.
53. Furthermore, during his visit, the rapporteur was told that
there have also been many cases of defence counsel violating orders
prohibiting the disclosure of witnesses’ names. So far, none has
been prosecuted in this context.
54. The rapporteur was concerned to learn from a judge at the
State Court that the key witnesses in two cases he had been working
on had ultimately refused to testify, as they feared reprisals.
Inadequate protection has meant that witnesses are increasingly
unwilling to collaborate in prosecutions.
55. The rapporteur was pleased to note that, technically, the
State Court of Bosnia and Herzegovina is perfectly equipped to protect
witnesses during trials. But, unfortunately, the level of protection
given to witnesses is often inconsistent. This has significantly
affected witnesses who give evidence in more than one trial. In
effect, at the first trial they may be granted excellent protection
measures, including, for example, being assigned a pseudonym. Subsequently,
when they are asked to testify in another trial, with another defendant, sometimes
based on the same set of facts, they are not necessarily given the
same levels of protection. This renders the protection measures
implemented in the first case useless.
56. It should be noted that, over the past few years, the State
Court has begun to develop rules of procedure governing protection
of witnesses. The rapporteur was assured that this should go some
way towards ensuring that the system becomes consistent, but there
is still a long way to go.
57. The Witness Protection Department of the State Investigations
and Protection Agency (SIPA) provides protection to witnesses during
proceedings in cases brought before the State Court, but it is not
competent to protect witnesses in cases dealt with in the entity
jurisdictions. Since its inception (in 2005), it has protected 439
witnesses in 705 trials.
58. Several of his interlocutors complained to the rapporteur
that the SIPA Witness Protection Department is underfunded and understaffed.
Note The technical equipment
of staff members is reportedly very poor.
59. The rapporteur was concerned to hear that witness protection
measures are not really put in place before and after the trial
and calls upon the authorities to allocate funds so that SIPA can
provide long-term protection to witnesses before, during and after
trials.
60. There are more profound problems at the entity level where
witnesses are not afforded adequate protection.
Note This is again partly due to insufficient
funding and inconsistencies in how protection measures are implemented.
The courts were supposed to have developed rules of procedure, but
they have not yet done so.
61. One of the main problems is that SIPA only operates at the
State Court level. In 2008, a new draft law on the witness protection
programme was proposed by the Council of Ministers, which would
have enabled SIPA to expand its witness protection programmes to
witnesses testifying before the entity courts. Unfortunately, the
law was not adopted, due to a vote against it by representatives
of the Republika Srpska.
62. The rapporteur was told that there seemed to be a general
feeling that this law should not be adopted at federal level as
entity competencies should remain within the entities. The rapporteur
cannot support this line of reasoning where witnesses’ safety is
put in peril and he urges the authorities to extend the role of
SIPA across all courts, including those in the entities, as soon
as possible.
63. With the exception of the cantonal and municipal courts of
Sarajevo, the entity courts do not have the same technical facilities
as the State Court to implement measures of protection such as video-links
or voice/image distortion.
Note As
the courts know that they do not have the necessary resources, they
often even fail to assess whether a witness needs any protection
in the first place.
64. The rapporteur was concerned to hear that as a result of all
of the above, witnesses have stopped requesting the implementation
of protective measures. The rapporteur welcomes the efforts made
by the OSCE to reverse this phenomenon by producing information
leaflets explaining what rights witnesses have and what they can
expect in terms of protection measures. He also urges the authorities
concerned, and particularly the courts in the entities, to take
up the OSCE’s recommendations on ways in which the courts can get
round having insufficient resources, including, for example, creating
a makeshift screen to hide the witness from public view during the
testimony or borrowing video-link equipment from the State Court.
4.1.4 Witness support
65. Only the State Court has the capacity to provide
psychological and social support to witnesses through the Witness
and Victim Section.
Note
66. The Witness and Victim Section has the responsibility of providing
psychological, organisational and administrative support to both
prosecution and defence witnesses in war crime trials. This includes
explaining the trial process to the witness. It is staffed by professional
psychologists and social workers with expertise in working with
traumatised victims of crime. A 24-hour phone service is provided
in case of need. It also assists in transport and logistical arrangements
for witnesses. However, until the date of the trial the Service
only contacts the witness by phone. They do contact the witness
a few days after the testimony by way of a follow-up call but no
long-term support or counselling is provided to the witness. The
War Crimes Chamber is also well equipped to make testifying a less
traumatic experience: there is a separate entrance for witnesses,
which is manned by SIPA staff, and a separate waiting room.
67. The Witness and Victim Section only gets involved with witnesses
once the indictment has been confirmed and after they have already
been interviewed by the Prosecutor’s Office. Prior to this, no support
is offered. The rapporteur was told that this makes it problematic
to work with witnesses in war crime cases. It is difficult to find
them in the first place and those that are found are afraid of testifying
and therefore need some form of support.
68. The rapporteur encourages the setting up of a support section
in the Office of the Prosecutor. This should include social workers
and psychologists.
Note The
National War Crimes Strategy provides for this and it should be
implemented as soon as possible. The SIPA should also be strengthened
so as to be already active during the investigation phase, as well
as during the trial and post-trial phases.
69. At entity level, no government-funded projects carrying out
psychological and social witness support exist. Provisions exist
within the Law on the protection of witnesses in danger or at risk
for measures concerning support for witnesses. It provides that
during the investigation phase, the prosecutor, and after preferring
of the indictment, the court, shall notify the Social Welfare Centres
that a witness is provided with protection and support measures.
The welfare institution should ensure that the witness is provided
with assistance and psychological support, including the presence
of a competent person during the questioning or the hearing. However,
it was repeatedly indicated to the rapporteur that there has been
no corresponding investment in the centres to help them deliver
the level of service that the law provides for. The rapporteur was disturbed
to learn that most of the centres are overburdened and do not even
know what their legal obligations towards witnesses are.
Note
70. The rapporteur was told that, as a result of this, the level
of support offered to witnesses across the country varies greatly,
with some prosecutors relying on the services of local and thematic
NGOs to provide support. An example of good practice is that of
the Tuzla Canton where a memorandum of understanding has been signed
between the Tuzla Canton Ministry of Labour and Social Affairs and
Vive Žene, a local NGO.
Note Out of Vive Žene’s 32 employees,
20 are psychologists, nurses, or psychiatrists. The NGO works well
with the Prosecutor’s Office. It establishes a first contact with
the witnesses, prepares them for trial and provides psychotherapeutic
assistance to them before, during and after the trial. The same
organisation is also involved in creating an unofficial witness
support network in Brčko where good co-operation has recently been established
with the Prosecutor’s Office, the Ministry of Internal Affairs and
an association of victims.
71. The rapporteur welcomes the work of NGOs in assisting the
authorities by delivering support services to witnesses. However,
he was concerned to hear that there were no guidelines or standards
set for NGOs working in this field. As a result of which there is
no knowledge about the level of service that NGOs provide and whether
it is adequate or not. There is some merit in getting NGOs with
expertise to deliver services but there must be strict criteria
regarding their role and their work must be monitored regularly
to ensure that a consistent service is being provided. Furthermore,
the rapporteur feels strongly that the authorities must take responsibility
for these programmes by establishing them in all areas and providing
funding to maintain services and expertise, whether they are delivered
through NGOs or through the Social Welfare Centres.
4.1.5 2008 National War Crimes Strategy
72. The National Council of Ministers adopted the National
War Crimes Strategy in December 2008. It sets out an approach on
how to better equip the judiciary to investigate, prosecute and
adjudicate in war crime cases. Witness protection is among the areas
addressed by the Strategy and the measures proposed in it were meant
to ensure the “protection, support and same treatment to all victims
and witnesses in the proceedings before all courts in Bosnia and
Herzegovina”.
73. The strategy contains plans to revise legislation and by-laws
in the field of witness protection and to clarify the competencies,
actions and procedural steps of those participating in witness protection.
The SIPA would be additionally staffed and equipped with adequate
material and technical resources. Moreover, the entities and Brčko
District courts are supposed to adopt by-laws prescribed by the
entity witness protection laws. Prosecutors would analyse cases
and see where they were linked so that the cases could be grouped
in order to prevent witnesses having to give evidence in identical
circumstances. Co-ordination should be improved between the courts
and the prosecutors’ offices so that where a witness would be appearing
in more than one case, the same protection measures would be put
in place, to prevent the disclosure of the witness’s identify in
another trial.
74. The National Strategy for War Crimes also recognised that
there were many problems with the current system of victim support
and promised to improve the quality of these services. It envisaged:
creating a network of witness and victim support services and using
the witness/victim support offices at the State Court to co-ordinate
this service; using the knowledge and capacities of NGOs already
working in this field; identifying NGOs able to deliver psychological
and social support; improving facilities at courts so that witnesses
will be provided with psychological assistance while delivering
their testimony and separate waiting rooms would be created in each
court to avoid unnecessary contact between the witness and the general
public; and employing psychologists in prosecutors’ offices.
Note
75. The measures envisioned in the strategy are positive and wide-ranging
and could go a long way towards improving the security of witnesses.
However, it was reported to the rapporteur that no steps could be
taken due to a lack of reliable data on the number of war crime
trials still to be conducted. The rapporteur was astonished that
– one and a half years after the strategy had been adopted – this
data had still not been collated. Enough time has been lost and
the rapporteur urges the authorities to implement the strategy,
which they themselves adopted, as a matter of priority. This strategy,
which includes a wide range of useful measures, should not remain
yet another “paper exercise” to please the international community
and must be implemented to bring about concrete results.
4.2 CroatiaNote
76. In October 2003, the four largest county courts in
Croatia (Osijek, Rijeka, Split and Zagreb) were granted special
jurisdiction to hear war crime cases under the Law on the Application
of the Statute of the International Criminal Court and the Prosecution
of Criminal Acts against the International Law of War and International Humanitarian
Law. The judges in these courts have been specially trained in how
to deal with war crime cases. Nevertheless, all courts that hear
penal cases in Croatia continue to process war crime cases. Municipal
courts handle cases where a maximum sentence of ten years can be
handed down.
Note According
to our interlocutors, the main reason for the continuation of this
practice is to enable war crime cases to be heard in the jurisdiction closest
to where the crimes were committed, rather than in courts with specialist
prosecutors, judges and facilities. Considering the importance of
training of prosecutors and judges and of provision of adequate equipment
to ensure witness protection and support, the rapporteur urges the
Croatian authorities to use one of the four specialised courts in
circumstances where witnesses may be at risk.
Note
4.2.1 Legislation
77. Legislation relating to witness protection can be
said to be adequate in Croatia; the laws largely cover the main
areas and meet international standards. The Law on Criminal Procedureis the main piece of domestic legislation
that regulates procedural measures for witness protection. It details
the list of measures available, starting with precautionary measures,
such as prohibiting the accused from leaving his place of residence
or making the defendant report to the authorities. Provisions in
the law also include procedural measures, for example allowing the
witness to testify under a pseudonym, keeping information regarding
the witness confidential and limiting the recording of the main
hearing.
78. Revealing the identity of protected witnesses, threats, aggravated
murder, violation of secrecy of data, obstructing the collection
of evidence are all criminal acts under the Criminal Code aimed
at protecting witnesses.
Note Witness
protection programmes are provided for under the Law on witness
protection,
Note which also provides for
a Witness Protection Unit and Commission.
79. The Witness Protection Unit is part of the Ministry of the
Interior/Police Directorate and is responsible for implementing
and organising protection programmes. The Commission consists of
five members who are representatives of the Supreme Court (a judge),
the Chief State Prosecutor’s Office, the administration of prison
system or the ministry competent for judicial affairs, the Ministry
of the Interior/Police Directorate, and the Head of the Witness
Protection Unit.
80. Upon the proposal of the competent state prosecutor or an
endangered person, the Chief State Prosecutor may submit a request
to the Commission to include the witnesses into the Protection Programme, if
his or her testimony is indispensable to the proceedings.
4.2.2 Witness Protection
81. Examples of good practice were highlighted to the
rapporteur during his visit to Zagreb. In the Ademi-Norac trial,
more than 40% of the witnesses who testified did so via a video-link.
One third of these were endangered witnesses living in Croatia.
Two thirds resided outside the country and their testimonies were obtained
through co-operation with Serbia, Canada, the United States and
Norway, where the witnesses were resident. This was clearly an encouraging
example of where international co-operation facilitated testimonies being
given at a trial.
82. Nevertheless, various interlocutors told the rapporteur that
witnesses still do not feel secure testifying in war crime cases.
Often the problem is that judges and prosecutors are not aware of
the tools available to them to protect witnesses. For example, where
video-conferencing facilities exist, they are not being used on
a regular basis to help witnesses who are reluctant to give evidence
at trial. Part of the problem is that most war crime cases continue
to be tried in the county courts or the municipal courts nearest
to where the crimes were actually committed rather than in the specialised
courts. Major concerns were expressed to the rapporteur about this
because neither the judges nor the prosecutors have been trained
in the same way as those in the four courts with special jurisdiction
to try war crime cases. Moreover, trying cases of this kind in local
courts, rather than transferring them to specialised courts, puts
witnesses in the local community at greater risk.
83. This predicament was highlighted in the investigation surrounding
the Gospić massacre. According to information provided to the rapporteur,
the local police force was implicated in crimes committed between
1991 and 1995 against ethnic Serbs. When the case was being investigated,
witnesses were asked to go to the local police station to give evidence.
Unsurprisingly, Serbian witnesses do not feel safe in these circumstances
and consequently are reluctant to give their testimonies.
84. The rapporteur urges the Croatian authorities to ensure that
war crime cases are dealt with in the four specialised courts. This
would ensure that judges and prosecutors coming into contact with
witnesses are fully trained regarding the witness protection measures
that are available to them. Furthermore, such cases would not be
tried near to where the crimes were committed, which would prevent
putting witnesses in the local community in additional danger.
85. In some cases, the identities of protected witnesses have
been revealed. There are penalties against this, but the rapporteur
was advised that no one has ever been prosecuted or convicted for
it. The negative consequences of this were illustrated to the rapporteur
in the so-called “Garage” and “Sellotape” cases, where Branimir
Glavaš, a Croatian parliamentarian, was convicted of war crimes
against Serbian civilians in March 2009. During a press conference
in 2005, the then Mayor of Osijek, Ante Dapić, read out the names
of 19 people who had provided information on the crimes committed
– many among them subsequently refused to give any statements as
a result of this. Similarly, Glavaš published court documents, witness
statements and other court filings on his personal website. Following
this, the Zagreb County Court took steps to implement protection
measures and ordered that the judicial investigation into the case
be kept confidential. Nevertheless, the identities of protected
persons become known when accused persons gave their defence statements
or questioned the witnesses. Another prosecution witness’s identity
became public before his witness protection programme had started.
Finally, after his conviction, Glavaš disseminated a video in which
he violated some witness protection measures. The rapporteur was
disturbed to hear that despite these obvious and public breaches
of court decisions, no sanctions were imposed on those revealing
the identities of the witnesses.
86. The upshot of this is that witnesses do not currently feel
secure in coming forward and testifying. The rapporteur considers
that improvements in the current system need to be made to ensure
that witnesses come forward and testify without having to be forced
to do so. The laws must be fully implemented and sanctions have
to be imposed on those people who put witnesses in danger.
4.2.3 Witness support
87. Participation in criminal trials is mandatory for
witnesses who have been issued with a summons. Once a witness has
been summoned to attend a trial, normally only limited support is
offered to them. Financial assistance is given towards the costs
of travelling to court. However, witnesses have to request this
during the trial and are required to hand their receipts to the
judge who subsequently makes a decision on whether the witness is
entitled to receive compensation for his or her expenses.
88. The rapporteur was informed that, beyond this, the courts
do not always provide witnesses with the support they need. Witnesses
often arrive at court and are expected to find their own way to
the right courtroom and wait in the main area until called to give
evidence. In Croatian courts, there are a limited number of reserved
rooms where witnesses can be separated from the general public and
the defendants.
89. Other concerns were expressed by those the rapporteur met
on his visit about court facilities not being fit for purpose. In
particular, the layout of the courtrooms is not conducive to the
witness providing his or her testimony without fear of intimidation.
For example, in the Ademi-Norac case, the defendant was seated in close
proximity to the witnesses who had to testify, with no barrier between
them and the defendant. This happened despite the fact that the
case was heard at the Zagreb County Court, which has special jurisdiction to
hear war crimes and is one of the courts with better facilities.
90. There is not yet a developed system throughout all the courts
that offers witnesses psychological and social support or provides
them with information on the court proceedings, or about NGOs that
can help them.
Note Witness
support only really exists within social networks, which can provide
only limited legal or psychological support. There is a significant
lack of investment by the authorities in these programmes and those
that do exist tend to be run by volunteers or NGOs. As in the case
of Bosnia and Herzegovina, the rapporteur is concerned about the
lack of consistency of the services provided by NGOs.
91. On the other hand, the rapporteur was encouraged to note that
there have been some attempts to improve the system. In 2005, a
Department for Support to Witnesses and other Participants in War
Crimes Trials was established within the Ministry of Justice. It
is responsible for ensuring legal and physical protection, as well
as psychological assistance for witnesses in war crime trials in
and outside Croatia. It also helps the prosecution process by finding
witnesses and organising their travel to a particular court. Unfortunately,
there are only three members of staff within the department,
Note which
means that they are unable to provide any comprehensive assistance
to witnesses who testify across the country.
92. In 2007, the United Nations Development Programme (UNDP) conducted
a survey on witness support in Croatia. It found that the vast majority
of witnesses were not offered any contact with organisations that
could provide them with practical or psychological support and most
witnesses felt threatened. As a result of the findings in the survey,
the UNDP established a pilot project whereby witness/victim support
offices were set up in four county courts (Osijek, Vukovar, Zadar
and Zagreb). Two members of staff were employed in each court and
then trained to provide support for witnesses during the court proceedings.
The UNDP also invested in the courts’ infrastructure by creating
work stations for the witness/victim support offices and separate
waiting rooms for witnesses and victims.
93. In the framework of the programme, NGOs, volunteers, judges,
prosecutors, police co-ordinators, patrol officers and criminal
investigators were trained on witness/victim’s rights. NGOs that
provided psychological, legal and other types of assistance were
assessed and networks created. The rapporteur believes that this
is an excellent example of good practice and should serve as an
inspiration for the other countries in the region. It is particularly
encouraging to see that the responsibility for the programme was
taken on by the Ministry of Justice in November 2009.
94. The UNDP has called for the programme to be rolled out in
three more courts in the near future; however, the Ministry of Justice
made it clear to the rapporteur that no funding could be made available
for this in 2010. The rapporteur strongly urges the authorities
in Croatia to allocate the necessary financial resources so that these
programmes can be put into place in all courts in Croatia that come
into contact with witnesses in cases involving serious crimes. In
particular, they should be established without delay in Rijeka and
Split, in view of the fact that they have jurisdiction to hear war
crime cases.
4.3 Montenegro
95. Montenegro declared its independence from Serbia
and Montenegro in 2006. As Serbia and Montenegro had a federal system,
separate laws on witness protection have been in place since 2003.
4.3.1 Legislation
96. The laws governing witness protection in Montenegro
are: the 2003 Criminal Code, the 2003 Criminal Procedure Code, the
2004 Law on Witness Protection Programme, the 2005 Police Act and
the 2005 National Security Agency Act.
97. The Criminal Procedure Code provides that witnesses are not
required to answer questions when they fear for their safety, until
appropriate protection measures are put in place.
Note It also provides, among other things, for
protection measures to be implemented to conceal the identity of
the witness during the trial by the use of a pseudonym and questioning
with the assistance of voice-distortion technology.
Note
98. The Law on Witness Protection Programme enables protection
for witnesses in cases of crimes “against the constitutional order
and security of the Republic of Montenegro, crimes against humanity
and other values protected by international law, crimes which are
committed in an organised manner, and crimes carrying a legally
prescribed punishment of ten or more years of imprisonment.”
Note
99. Protection programmes are available to witnesses or someone
close to them (such as the spouse or other relative). A witness
can be placed on a protection programme at his or her request or
on the initiative of the state prosecutor, a judge, the director
of a prison or the Director of the Criminal Police. Measures prescribed in
the law include: the physical protection of the person and his or
her property, change of identity and relocation.
4.3.2 In practice
100. The measures prescribed in the witness protection
laws in Montenegro, if employed properly, would provide adequate
protection to witnesses in war crime cases. In practice, not many
war crime cases are being tried in comparison to other states. However,
in other types of cases tried, it would appear that witnesses were not
always provided with adequate protection.
101. The rapporteur was informed about the case of a former police
officer, Slobodan Pejović, who is a witness in a war crimes case
that is currently being tried in Montenegro. In 1992, the force
that Mr Pejović was part of deported Bosnian Muslim refugees from
Montenegro and delivered them to the Serbian army in Bosnia. Mr
Pejović has spoken out against the decision and claims that he refused
to take part in the crimes. Subsequently, he has been attacked on
a number of occasions when he believes that his life was threatened. He
alleges that in September 2009 his car was riddled with bullets
and in December 2009 it was smashed up. Nine members of the local
police force have now been indicted and Mr Pejović is to give evidence
at the trial later this year.
102. According to information provided to the rapporteur, the local
police force has been reluctant to implement any protection measures
for Mr Pejović, despite the seriousness and level of the threats
against him. Some measures have been implemented recently, but only
after 70 NGOs complained to the authorities about the treatment
he was receiving. The difficulty in this case seems to be that Mr
Pejović is requesting protection from the very force he is testifying
against. The rapporteur calls upon the authorities in Montenegro to
investigate thoroughly all the attacks against Mr Pejović and to
protect him before, during and after he delivers his testimony in
this case.
103. The case of Mr Pejović shows the seriousness of the shortcomings
in the witness protection system in Montenegro, at least when it
comes to the effective implementation of the existing relevant legislation.
104. A Witness Protection Unit was established in the Ministry
of Internal Affairs in 2006. It is responsible for the application
of protection programmes. A Development Strategy was adopted in
2007. The OSCE Mission in Montenegro has provided training to three
members of staff there. The OSCE plans to host a seminar in 2010
to expose the Witness Protection Unit to the practices of other
units in the region. The amenities of the courts in Montenegro also
need to be upgraded for them to have the technical facilities to
allow witnesses to testify safely and in good conditions.
4.4 SerbiaNote
105. The Republic of Serbia has potentially one of the
most difficult tasks in prosecuting war criminals in the former
Yugoslavia, partly due to the size of its population, but especially
due to the number of conflicts that the Yugoslav People’s Army (JNA)
and paramilitaries were involved in.
106. The War Crimes Chamber was created in 2003 and is part of
the Belgrade District Court. It is composed of nine judges (three
sections consisting of three members) and is responsible for all
future war crime trials in Serbia. Reportedly, only the War Crimes
Chamber and the Organised Crime Chamber seem to be adequately technically
equipped to ensure witness protection and support.
107. The post of special prosecutor for war crimes was established
with the aim of seeking out and prosecuting perpetrators of such
crimes. It has a special detention unit and a special war crimes
investigation service within the Ministry of Internal Affairs. There
is also a special prosecutor for organised crime, who has similar
functions to those of the special prosecutor for war crimes.
4.4.1 Legislation
108. The legislative framework concerning witness protection
(which barely existed beforehand) has been considerably improved
over the last few years.
109. The Criminal Procedure Code of 2006 is the principle source
of witness protection provisions in Serbia. Articles 109.a to109.dj
give a framework based on the Rules of the ICTY. Article 117 of
the Code, stipulates under which conditions the court can place
a witness under a protection programme: where the witness or someone
close to him would be exposed to serious danger to life, health,
physical integrity and property, in criminal proceedings for an
offence punishable by at least four years’ imprisonment. Protection
measures include: exclusion of the public from the trial or altering,
expunging from records or a ban on the publication of the identity
of the witness, withholding data on the witness, questioning of
the witness under a pseudonym, and concealing the appearance of
the witness; testifying in different locations and using voice-
distortion technology. Article 110 governs the treatment of particularly
vulnerable witnesses. This relates both to witnesses in court proceedings
and during the police investigation.
110. The Law on the organisation and jurisdiction of governmental
authorities in war crimes proceedings (2003)
Note provides
for testimonies to be delivered by video-link. It also stipulates
that where cases are transferred from the ICTY, the protection measures
that have already been put in place remain.
111. The Police Act (2005)
Note provides that
the police should undertake appropriate measures to protect the lives
of victims/witnesses that have given information.
112. The Law on the protection programme for participants in criminal
proceedings (2005)
Note governs non-procedural protection
and provides for a protection programme for witnesses in organised
crime and war crime cases. The Protection Unit is based in the Ministry
of Internal Affairs. Protection measures include: physical protection
of persons and property; relocation to a new home or to another
prison if the person is incarcerated; concealing the identity of
a witness; and a total change of identity.
4.4.2 Witness Protection
113. It was explained to the rapporteur that in the present
system it is the judge who takes the decision as to whether a witness
is at such risk that it requires placing him or her on a witness
protection programme. All information on the witness must be kept
in a sealed envelope and only the Chamber of Judges knows the identity
of the witness. However, thirty days prior to the trial, the defence
counsel is notified about the identity of any anonymous or protected
witnesses. The accused is forbidden from revealing the identity
of a witness given to his defence counsel. The rapporteur believes
that this system has similar flaws to those discussed above with
reference to the ICTY.
114. Sanctions exist to deter people from revealing the identity
of witnesses (which is considered as a breach of professional secrecy),
but they have not been used yet. It has been known for protected
witnesses to reveal their own identity.
115. A Witness Protection Unit (WPU) was established in 2006 in
the War Crimes Chamber (outside any formal legal framework) and
is operated by the Ministry of Internal Affairs. The rapporteur
was informed that the Unit has been very active and has placed more
witnesses on its programmes than the rest of the Balkans put together.
Many measures are available to judges, including the use of video-links
and the pre-recording of testimony. Testimonies by way of video-link
have been particularly useful in getting witnesses to testify from outside
the jurisdiction.
116. Problems with the functioning of the WPU were brought to the
attention of the rapporteur. Firstly, there is no protocol on how
the unit should operate, which could potentially lead to inconsistencies.
Secondly, the WPU is financially under-resourced. There is a lack
of equipment, which means that despite measures being provided for
in law, they are not always available in practice. For example,
not enough police officers are available to provide support to witnesses
who need round-the-clock protection.
117. A further concern expressed to the rapporteur by several of
his interlocutors was that the Witness Protection Unit fell under
the responsibly of the Ministry of Internal Affairs, which is also
responsible for the police service. This presents a difficulty when
the unit is trying to protect witnesses “with blood on their hands” or
those witnesses who are wanted in connection with other crimes.
Indeed, witness protection programmes do not work so well, because
of a potential conflict of interests, when the police have to protect
witnesses that they are trying to have prosecuted. Complications
have reportedly also been encountered when “insider” witnesses attempt
to testify, for example witnesses who are part of the police. Such
witnesses are reluctant to come forward and testify against their
colleagues, especially where any protection that they may be awarded would
come from those that they are attempting to testify against. There
have been calls for the Unit to be transferred over to the Ministry
of Justice so that the unit is independent of the police force.
Furthermore, a lack of co-ordination and co-operation between the
WPU, the prosecutor’s offices and the courts was pinpointed.
118. It was also reported to the rapporteur that inappropriate
behaviour by members of the WPU towards witnesses has sometimes
resulted in the witnesses either changing their testimony or simply
deciding not to testify at all. Even more worrying, the rapporteur
was told by the Special Prosecutor for War Crimes, that members
of this unit were believed to have made public extracts of witness
testimonies. However, they could not be prosecuted due to lack of
evidence. Considering that the WPU actually supports the work of
the prosecutor, the prosecutor would like to have a certain authority
over the unit to be able to avoid such problems.
119. Finally, several members of the WPU are reportedly former
members of the “red berets” (unit which is said to have committed
war crimes). The rapporteur underlines that recruitment of WPU members
should comply with a strict procedure and strict criteria, in order
to waive any doubts about possible previous involvement of its members
in war crimes or serious crimes. Therefore, the WPU should not include
members of former units that participated in the war.
120. For all these reasons the rapporteur supports calls for the
WPU either to be transferred over to or to be co-ordinated by the
Ministry of Justice, with a view to the office of the prosecutor
being structurally in charge of ensuring witness support from the
beginning of the investigation phase.
121. Only the War Crimes Chamber has a WPU and there is no legal
basis for establishing units outside the Chamber. However, the rapporteur
feels that the Chamber for Organised Crime and other courts that
may deal with cases of organised crime or trafficking also need
to be able to protect witnesses who may be put in danger by testifying.
A protocol on how the WPU operates also appears indispensable.
122. Although not a war crime case, the case of Zoran Vuk Vukojevic
is illustrative of where witness protection programmes are needed
and where witnesses need to have confidence in the system. The rapporteur
was told that Mr Vukojevic had worked for one of the biggest criminal
gangs in Serbia, the “Zemunski klan”, and was a witness in the case
of the murder of the Serbian Prime Minister, Zoran Djindjic, who
was assassinated in 2003. Mr Vukojevic was a collaborator of justice
and had been placed on a witness protection programme. However, of
his own free will, he left the programme, only to be found murdered
in his car shortly afterwards, on 3 March 2006.
123. If adopted, the new Law on Criminal Proceedings will alter
the way crimes are investigated in Serbia. Investigative judges
will cease to exist and the prosecutor will take over the investigative
functions (therefore being in touch with witnesses from the very
beginning of the investigation phase). As such, it may become imperative
to also have a witness protection unit within the Ministry of Justice,
attached to the prosecutor. Currently, there is ongoing debate in
Serbia about this possibility, which the rapporteur supports (see
also the section on Bosnia and Herzegovina).
124. During his visit to Serbia, the rapporteur got the feeling
that there is a certain political will to improve the witness protection
system and that some efforts have already been undertaken to that
end. However, the capacities of the system remain very limited and
it suffers from a lack of trust on the part of the witnesses, an inadequate
legal framework, absence of adequate funding, a lack of technical
equipment, as well as from a lack of co-ordination and co-operation
between the relevant actors.
4.4.3 Witness support
125. The rapporteur regrets that no comprehensive and
efficient system of witness support has been established in Serbia.
A Victim and Witness Support Unit was established in the War Crimes
Chamber in June 2006. It consists of two members of staff who had
no prior related work experience when they were employed. They have
now been trained and work closely with the Humanitarian Law Centre.
They make travel and accommodation arrangements for witnesses and
look after them in the court building. Nevertheless, they currently
do not have the capacity or financial resources to provide psychological
support to witnesses.
Note No such system has been rolled
out in any other court that deals with victims or witnesses of serious
crimes.
126. Again, as discussed in previous sections of this report, the
rapporteur welcomes the work of NGOs in this field, but firmly believes
that the Serbian authorities should take responsibility for witness
support by setting up and providing funding for programmes in all
courts that have dealings with witnesses of serious crimes.
4.5 KosovoNote
127. There is no Witness Protection Law in Kosovo. However,
a draft law aimed at protecting witnesses is currently undergoing
review by the competent ministries. All five district courts in
Kosovo have jurisdiction to hear war crime cases.
Note Regulation 2001/20 of the
United Nations Interim Administration Mission in Kosovo (UNMIK)
on the Protection of Injured Parties and Witnesses in Criminal Proceedings,
grants trial panels the power to implement a series of protective
measures.
Note In
the most serious cases, witnesses are able to testify anonymously.
Note However,
it was made clear to the rapporteur that these measures are useless
as long as the witness is physically in Kosovo, where everybody
knows everybody else. Most witnesses are immediately recognised
by the defence when they deliver their testimony, despite all the
anonymity measures.
128. A witness protection unit was first established by UNMIK.
Note However, an OSCE report
assessed that this structure suffered from three main deficiencies:
lack of sufficient funds; lack of a comprehensive witness protection
law and lack of local and international specialised police with
expertise in protecting witnesses.
Note In the
meantime, EULEX has also set up a witness protection unit and the
rapporteur was reassured to see that the unit seems to work very
professionally, although it suffers from a chronic lack of staff.
129. There are many limitations to the protection arrangements
currently available, not least because Kosovo has a population of
less than two million with very tight-knit communities. Witnesses
are often perceived as betraying their community when they give
evidence, which inhibits possible witnesses from coming forward. Furthermore,
many people do not believe that they have a moral or legal duty
to testify as a witness in criminal cases.
Note
130. Moreover, when a witness does come forward, there is a real
threat of retaliation. This may not necessarily put them in direct
danger, losing their job for example, but there are also examples
of key witnesses being murdered. Some witnesses who had testified
against,
inter alia, Daut
Haradinaj before the courts in Kosovo, have been murdered.
Note Concerns
have been raised about possible parallel interests between those who
sought to interfere with the trial of Daut Haradinaj and those who
might seek to interrupt the prosecution against Ramush Haradinaj
before the ICTY.
Note The
trial of Ramush Haradinaj, the former leader of the Kosovo Liberation
Army, well illustrates how pressure can be brought to bear on witnesses.
Mr Haradinaj was indicted by the ICTY for crimes committed during
the war in Kosovo but was subsequently acquitted. In its judgment
of 3 April 2008, the Tribunal highlighted the difficulties that
it had had in obtaining evidence from the prosecution witnesses.
Thirty-four of them were granted protection measures and 18 had
to be issued with summonses. On 21 July 2010, the Appeals Chamber
of the ICTY partially quashed the acquittals and ordered a partial
re-trial of the case, particularly in the context of the serious
witness intimidation that formed the context of the trial.
Note
131. Similarly, a prosecution witness was murdered and an anonymous
witness was seriously injured in a market in Xërxë/Zerze on 10 October
2005, after having agreed to testify in a war crime trial. The full
name and details of the anonymous witness were published in a local
newspaper. As a result of this, at the trial in December 2005, the
surviving witness was no longer able to testify anonymously.
NoteNote
132. As noted by the OSCE, in Kosovo, all too frequently, witnesses
who initially make statements to the police later change their testimony
or become unwilling to testify at trial, because they fear reprisals.
Incidents of witness intimidation and injury occur often enough
to justify this reluctance on the part of witnesses.
Note Witnesses who testify anonymously
or under a protection programme also fear that their identities
will be disclosed. Indeed, local newspapers have frequently revealed
the identities of protected witnesses.
Note Threats and assaults
on witnesses often go unpunished.
133. The difficulty with witness relocation programmes has already
been discussed elsewhere in this document. However, the rapporteur
wishes to draw attention to the fact that this is a particularly
acute problem in Kosovo, where witnesses have been killed.
134. Relocating witnesses safely inside Kosovo is nearly impossible
due to its size. The only real protection measure for endangered
witnesses (and their relatives) is relocation outside Kosovo. However,
several factors (for example, the traditionally large size of Kosovo
families, their lack of knowledge of English, the non-recognition
of Kosovo’s independence by a number of states, etc.) have as a
consequence that not many countries accept relocation candidates
from Kosovo. Similarly, the rapporteur was told that some governments are
reluctant to accept witnesses from Kosovo due to wider issues concerning
their migration and political asylum policies.
135. The EULEX WPU negotiates ad hoc relocation agreements through
informal networks
Note and covers relocation
costs (for the relocation itself and for the living costs of relocated
persons). However, due to lack of staff, a number of cases cannot
be currently investigated because the EULEX WPU would not have the
means to protect the witnesses. The rapporteur believes that this
is a serious obstacle in the administration of justice that could
be remedied by allocating more manpower to the WPU.
136. Like the ICTY, EULEX’s mission is of limited duration. The
European Union will have to foresee a residual mechanism with a
view to continuing to maintain the protection of those witnesses
taken care of by EULEX after its mandate ends.
137. Witness support programmes are extremely limited in Kosovo.
There is currently no system in place to give support to witnesses
in the five courts that deal with war crime cases. There is also
a problem of a lack of adequate equipment and facilities, such as
separate entrances for witnesses or secluded waiting rooms where witnesses
can feel safe while they are waiting to give their evidence at trial.
138. As stated by several of the rapporteur’s interlocutors, potential
witnesses lack confidence in the protection they could benefit from
and therefore refuse to testify. As already underlined in this report,
it is of the utmost importance that conditions are created in which
witnesses feel safe to testify. Many potential witnesses in Kosovo
claim to be perceived as traitors if they testify. The rapporteur
encourages member states to facilitate the relocation of endangered
witnesses from Kosovo, in particular by accepting to host them on
their territory.
139. As recognised by several Kosovo officials, without the international
community Kosovo would not be in a position to ensure any kind of
protection for endangered witnesses (the Kosovo police does not
have the necessary capacities). Furthermore, the authorities recognise
openly that in certain highly sensitive alleged war crime cases
it will be impossible to find judges, prosecutors and lawyers from
Kosovo willing to deal with cases concerning these defendants.
5 Regional and international co-operation
140. Due to the nature of the conflicts in the states
of the former Yugoslavia, as well as to the small size of those
countries, regional and international co-operation on witness protection
is imperative.
141. The rapporteur was encouraged to note that there have been
significant improvements when it comes to co-operation on witness
protection between the different countries in the region. He was
pleased to hear that good co-operation exists between the Serbian
and Croatian Ministries of Justice and in general between the prosecutors’
offices in Bosnia and Herzegovina, Croatia, Montenegro and Serbia.
This sort of co-operation is particularly important where a witness
has to be protected when travelling from one state to another to
give evidence, as well as in cases where video-link testimony can
be used to collect testimonies.
142. All Council of Europe member states discussed in this report
have signed and ratified the Second Additional Protocol to the European
Convention on Mutual Assistance in Criminal Matters (ETS No. 182), which,
among other things, provides for co-operation on witness protection
and assistance by the use of video-conferencing technology to enable
a witness from one contracting state to testify in a criminal case
of another.
143. There are a number of bilateral agreements, for example the
District Court in Belgrade and the Court of Bosnia and Herzegovina
signed a Memorandum of Understanding in 2007 on Co-operation in
Support for Witnesses for their Participation in Criminal Proceedings.
Bosnia and Herzegovina and Serbia are also part of the multilateral
Police Cooperation Convention for Southeast Europe, Article 10 of
which provides for co-operation in the area of witness protection
programmes. There are no specific agreements between Serbia and Croatia,
but there are agreements between the two countries on mutual assistance
in criminal matters.
Note
144. A problem that was repeatedly mentioned to the rapporteur
during his visits to the region was that of witness relocation agreements.
For these relocation programmes to be effective, international co-operation
is very necessary. This is especially the case for the countries
discussed in this report as – given their small size – relocation
internally will not necessarily provide adequate protection. There
have been a number of bilateral agreements made with states in other
regions of Europe to relocate witnesses.
Note However,
most agreements stipulate that the state requesting assistance should
bear the costs of relocation and supporting the witness in his or
her host country. The rapporteur feels that this is a particularly
onerous requirement falling on the states in the region. Nevertheless,
relocation agreements are concluded on the basis of the principle
of reciprocity. To help the countries concerned to face the costs
of ensuring witness protection – and considering that the good administration
of justice is a universal interest as well as a shared responsibility
– the rapporteur calls upon Council of Europe member states to financially
support their efforts by, for example, considering financing witness
protection equipment and adequate training. The host countries should
also consider bearing part of the living costs of relocated witnesses.
145. The rapporteur would also like to highlight here the role
that the international community has already played in improving
witness protection in the region, by providing funding to re-equip
courts and train the judiciary staff and other actors in witness
protection.
Note
6 Conclusion
146. Over the past few years, all the states discussed
in this report have adopted regulations designed to protect witnesses
who provide invaluable testimonies in war crime cases. Furthermore,
significant investment has been made into programmes by various
actors of the international community.
147. The rapporteur believes that these are important steps forward,
not just for the prosecution of war crime cases but also to protect
witnesses in organised crimes, trafficking and any other cases where
witnesses face a real or presumed threat to their safety.
148. Nevertheless, following his visits to the region, the rapporteur
feels that there are significant differences in the level of witness
protection in the states concerned and that none of those states
provide a complete system of witness protection. The consequences
of this have been felt most seriously in Kosovo, where witnesses
have been murdered. In Bosnia and Herzegovina, witnesses are regularly
threatened and intimidated. In Croatia and Serbia, the identities
of certain witnesses have been revealed. Although seemingly less
serious, the consequences are nonetheless far-reaching as witnesses
are reluctant to come forward and provide their invaluable testimonies,
without which the courts are unable to administer justice and play
their part in the reconciliation process in the Balkans.
149. Similarly, witness support programmes are not satisfactory
in any of the states discussed and are barely existent in most.
At present, the protection services provided are sporadic and do
not provide satisfactory support to the witnesses that testify in
war crime cases. There is a real danger that those witnesses that
do come forward will experience secondary victimisation as a result
of this or that they will simply stop coming forward at all.
150. In Bosnia and Herzegovina, the State Court regularly employs
witness protection measures. However, improvements are needed and
measures should be implemented consistently. In the entity courts,
the protection afforded to witnesses is sporadic. The National War
Crimes Strategy needs to be implemented and courts at the entity
level should develop rules of procedure for witness protection.
Further investment in the State Investigation and Protection Agency
should be made to ensure that witnesses testifying in war crime cases
in the courts at entity level can be placed in protection programmes
where necessary.
151. The law provides for support services to be delivered by the
Social Welfare Centres, but this has not been matched by the allocation
of the necessary financial resources to these services outside of
the State Court, where support is limited. Given that the majority
of war crime cases are heard at the entity level, it is important
that adequate funding and training is given to provide witnesses
with effective support. NGOs are providing support in some areas,
but the authorities should ensure that this support is consistent
and is provided to witnesses in all courts.
152. Satisfactory legislation to protect witnesses exists in Croatia.
However, war crime cases are being tried in courts where judicial
staff have not been trained in witness protection. The rapporteur
believes that war crime cases – in which witnesses are at risk –
should be transferred to the courts with special jurisdiction to
try them, where judges and prosecutors have the training and facilities
to implement protection measures. At the same time, training should
be given to judges and prosecutors in all courts so that protection
measures can be employed in other cases where witnesses’ safety
is put at risk when they decide to testify.
153. Witness support services have improved in Croatia thanks to
the programme established in four courts by the UNDP. These services
should be extended to all courts dealing with cases of war crimes,
organised crime and trafficking. In particular, services need to
be developed in the county courts in Rijeka and Split, which have
special jurisdiction to hear war crimes.
Note
154. In Serbia, all war crime cases are heard in the War Crimes
Chamber, where protection measures are available and a Witness Protection
Unit is in operation. However, the WPU needs more financial resources
and its remit needs to be expanded so that it can protect witnesses
in other types of cases, especially those relating to organised
crime. The WPU also needs to be overseen by a body that is independent
of the police force to ensure that “insider” witnesses are also
protected and feel secure.
155. In Serbia, support services are apparently only provided by
the Humanitarian Law Centre in the framework of the War Crimes Chamber.
Services should be extended to other courts. In Kosovo and Montenegro,
witness support barely exists.
156. The regulations governing witness support in Kosovo should
be radically amended and funding should be given to agencies involved
with protecting witnesses, as well as for the training of their
staff. As has been described above, witnesses are not being adequately
protected, which is particularly serious in a place where witnesses
are already reluctant to co-operate with investigations into war
crime cases.
157. In all the states mentioned in this report, these laws have
only been enacted recently and the real benefits will not be felt
until police investigating war crimes, prosecutors, judges and state
officials are trained in the protection measures they can provide
to witnesses. The rapporteur strongly believes that the governments
must take responsibility and ownership of these programmes. He calls
on the authorities in the region to put into place financial measures
to ensure that all courts have adequate resources to protect witnesses,
as well as to meet the needs of staff and technology.
158. Co-operation between states has been effective in enabling
witnesses to testify via video-links from other states in war crime
cases. This significantly reduces the risk of harm to witnesses
who would otherwise have to travel to a state they have fled from.
However, further international co-operation is crucial for witness relocation.
European states should consider accepting to host witnesses from
the Balkans, and especially Kosovo, in the framework of relocation
programmes.
159. Furthermore, the rapporteur believes that witness support
programmes need to be extended and made operational in all courts
in the region that receive witnesses giving evidence in serious
criminal cases. All such programmes should at least be established
and overseen by the authorities. It is all very well to use NGOs
to provide services, but states must not discharge their own duty
towards witnesses onto these NGOs. The authorities must ensure that
where NGOs are engaged to provide witness support services and receive
the appropriate funds to do so, these services meet minimum standards
and are consistently delivered to all witnesses that require their
services.
160. The countries of the former Yugoslavia must be conscious of
the fact that the international community is watching developments
on how they conduct war crime trials. Indeed, in the same way that
the ICTY has served as a model for subsequent war crime tribunals
and special courts, the countries concerned could be taken as a
model for peace and reconciliation. One should bear in mind that
there is a certain urgency in this respect since testimonies – and
with them a part of the truth – are lost forever when witnesses
are no longer alive. Witnesses who stand up for truth and justice
are owed reliable and durable protection.
Note Without the protection
and support that witnesses need to be able to testify, justice and
reconciliation cannot be achieved.
