Protection of witnesses as a cornerstone for justice and reconciliation in the Balkans
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on
26 January 2011 (5th and 6th Sittings) (see Doc. 12440 rev., report of the Committee
on Legal Affairs and Human Rights, rapporteur: Mr Gardetto). Text
adopted by the Assembly on 26 January 2011 (6th Sitting). See also Recommendation 1952 (2011).
All references to Kosovo in this text, whether to the territory,
institutions or population, shall be understood in full compliance
with United Nations Security Council Resolution 1244 and without
prejudice to the status of Kosovo.
- Thesaurus
1. Nearly two decades have elapsed
since the start of the conflicts in the former Yugoslavia, which
were marked by gross violations of international humanitarian law,
including crimes against humanity and genocide. The United Nations
Security Council established the International Criminal Tribunal
for the former Yugoslavia (ICTY) to bring to justice those who have
committed serious violations of international humanitarian law in
the former Yugoslavia since 1991.
2. The Parliamentary Assembly is aware that the ICTY’s mandate
will soon expire and welcomes the fact that the majority of war
crime cases are now being tried in the national courts of the countries
concerned.
3. While recalling its
Resolution
1564 (2007) on the prosecution of offences falling within
the jurisdiction of the ICTY, the Assembly underlines the urgency
of protecting witnesses, 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 merit reliable and
durable protection. Without the protection and support that witnesses
need to be able to testify, justice and reconciliation cannot be
achieved.
4. The Assembly is appalled to note that, in the region of the
former Yugoslavia, several witnesses have been killed and numerous
others have been intimidated, threatened or have had their identity
revealed by people determined to obstruct the course of justice
and conceal the truth. The Assembly regrets that, due to these threats,
many witnesses finally decide not to testify because they fear for
their lives or those of their families.
5. For many witnesses, testifying is a daunting experience, which
implies reliving traumatic events. The Assembly is concerned that
many witnesses do not testify because they do not receive adequate
support from the authorities. It is also aware that many potential
witnesses still believe that they will be perceived as traitors if
they testify in war crime cases.
6. The Assembly furthermore underlines the specific difficulties
encountered by so-called “insider” witnesses, especially those who
have served in the armed forces or the police, and stresses the
need to guarantee that the witness protection teams are truly impartial
and have no vested interest whatsoever in the trials.
7. The Assembly believes that witnesses have the right to be
physically protected so that they can deliver their testimonies
safely and without fear. Furthermore, it considers that they should
be given support – including legal and psychological support – before,
during and after the trial. While acknowledging the work undertaken by
certain non-governmental organisations (NGOs) in this respect, the
Assembly regrets that witness support is often neglected in the
countries concerned and urges the relevant authorities to provide
witness support either through state programmes or in collaboration
with qualified staff working for NGOs.
8. At the international level, while acknowledging the important
and pioneering work of the ICTY in developing procedural measures
and precedents for witness protection in war crime cases and the
essential role of the ICTY’s Victims and Witnesses Section, the
Assembly is disturbed to note that the Rules of Procedure and Evidence
of the ICTY foresee – with a view to guaranteeing the rights of
the defence – that the prosecutor has a duty to disclose the identity
of an anonymous witness to the parties thirty days prior to the
trial.
9. 9.The Assembly considers that it cannot be seen to be in the
interest of justice for the identity of all anonymous witnesses
to be systematically revealed to the defence. In cases where revealing
the identity of a witness puts that person at a disproportionately
high risk, the Assembly considers that the ICTY might envisage the
use of a “special advocate”, independent of both the prosecution
and the defence, in compliance with the case law of the European
Court of Human Rights.
10. Also, as already stated in
Resolution 1564 (2007), the Assembly
is convinced that “[c]onsidering that ICTY’s long-term (and moral)
commitment towards its own witnesses, a residual mechanism, with
a view to continuing to maintain witness protection when its mandate
ends, should also be established”. It considers that once the mandate
has expired, it would be more economical and efficient to hand over
the residual mechanism to the International Criminal Court.
11. At the national level, the Assembly recognises that the countries
concerned have adopted legislation and regulations on witness protection
and acknowledges that many witnesses have been protected in the
region as a result of these measures.
12. However, the Assembly is concerned to note that, in practice,
the level of witness protection varies greatly across the region,
as well as within the countries concerned, and that – no doubt for
financial reasons – witness support and protection programmes seem
to be used less than the safety of witnesses requires. Too often,
the capacities of the existing systems remain limited and suffer
from lack of trust on the part of the population, of a proper legal
framework, of adequate funding, facilities and technical equipment,
as well as from a lack of co-ordination and co-operation between
the relevant actors.
13. The Assembly is pleased to note that increased co-operation
between the states concerned has enabled witnesses to continue to
be protected as they travel from one state to another and that the
use of video-link technology has allowed witnesses to testify without
having to travel to the country trying the case and therefore putting
themselves in danger.
14. The Assembly welcomes the contribution of the international
community in providing funding and training on witness protection
in the countries concerned. It particularly acknowledges the important
role of the Organization for Security and Co-operation in Europe
(OSCE) in the region, in particular its monitoring activity in war
crime trials and training and awareness raising with regard to witness
protection in national courts. It encourages the OSCE to pursue
this important task.
15. The Assembly further acknowledges the work of the United Nations
Development Programme in Croatia in establishing witness support
programmes which provide support and advice for witnesses in four
pilot courts. It welcomes the fact that the Croatian authorities
have taken over responsibility for these programmes. It regrets,
however, that these kinds of programmes have not yet been institutionalised
in the majority of courts in the region and encourages the authorities
of the countries concerned to extend these programmes to all courts
trying serious crimes.
16. The Assembly therefore calls on:
16.1 the competent authorities in the states and territories
concerned to:
16.1.1 fully implement
Committee of Ministers Recommendation No. R (97) 13 on intimidation of
witnesses and rights of the defence and Recommendation Rec(2005)9
on the protection of witnesses and collaborators of justice;
16.1.2 if necessary, modify their national legislation, in order
that, in extreme cases, the identity of witnesses may be kept secret,
even from the defence, according to the case law of the European
Court of Human Rights;
16.1.3 increase the resources allocated to witness protection
programmes, adequately equip the courts with the necessary facilities
and technical equipment and establish an autonomous authority, separate
from the police or those investigating the crimes, to oversee the
programmes and allocate funds;
16.1.4 take steps to ensure that all judges, prosecutors, police
officers and any other agents that come into contact with witnesses
in serious crime cases are fully trained in witness protection and
measures that are available to them to protect witnesses;
16.1.5 encourage the judiciary and prosecutors to investigate
speedily and effectively all allegations of witness intimidation
and threats and ensure that those people who put witnesses in danger
are sanctioned;
16.1.6 make efforts to ensure that witnesses know what protection
and support measures are available to them, before, during and after
the trial;
16.1.7 establish and provide funding for witness support programmes,
using those that have been set up by the United Nations Development
Programme in Croatia as a model, in all courts dealing with witnesses
in serious crimes;
16.1.8 ensure that witness support measures, including gender-sensitive
witness protection for the victims of war crimes involving sexual
violence, are available from the beginning of the investigation,
for instance by setting up support sections employing social workers
and psychologists, in particular in the offices of the specialised
prosecutors, where they exist, and in the police units responsible
for the investigation of crimes under international law;
16.1.9 define the regulations and criteria concerning the role
of NGOs or social welfare centres with regard to witnesses, ensure
adequate funding to perpetuate their service and expertise, and monitor
their work to ensure that the service provided is consistent with
these regulations and criteria;
16.1.10 continue and improve co-operation with one another in
the prosecution of war crime cases;
16.2 the authorities of Bosnia and Herzegovina to:
16.2.1 implement without delay the
proposals made in the National War Crimes Strategy;
16.2.2 enact legislation to enable the State Investigation and
Protection Agency to provide witness protection programmes in all
courts across the country and ensure that this agency has adequate
resources, both financial and human, to support witnesses during
the investigation phase and during the trial and post-trial phase.
Similar legislation should be enacted and adequate resources should
be made available in order to provide witness protection in criminal proceedings
before the courts in all entities;
16.2.3 ensure the harmonisation of case law, consider setting
up a supreme court or grant the powers of a supreme court to an
existing jurisdiction so as to guarantee legal certainty by harmonising
the interpretation of the law;
16.3 the authorities of Croatia to:
16.3.1 in circumstances where witnesses may be at risk, use one
of the four principal courts which were granted special jurisdiction
to hear war crime cases or cases of organised crime;
16.3.2 extend the witness support programmes established by the
United Nations Development Programme to all courts dealing with
serious crime in Croatia;
16.4 the authorities of Montenegro to thoroughly investigate
all cases of intimidation, threats and attacks against witnesses
and to protect them before, during and after they deliver their
testimony in serious crime cases;
16.5 the authorities of Serbia to:
16.5.1 create and implement a procedure to organise the operation
of the Witness Protection Unit, ensuring that it is established
according to professional standards, with suitably qualified and
trained staff, in order to ensure the impartial operation of the
unit, free of political or other interference, allocate adequate
resources for its proper functioning and adapt legislation so that all
courts dealing with serious crimes outside the War Crimes Chamber
can benefit from this unit and from the Victim and Witness Support
Unit;
16.5.2 consider the transfer of responsibility for the Witness
Protection Unit to the Ministry of Justice, in order to avoid any
conflict of interest between the members of this unit and the witnesses
they are supposed to protect;
16.6 the authorities in Kosovo2 to:
16.6.1 seriously tackle problems encountered by witnesses, given
the acute difficulties they are faced with, which have resulted
in several of them being killed;
16.6.2 enact legislation that provides for the protection of
witnesses that testify in war crimes and other serious crime cases,
during the investigation proceedings, the judgment and after the trial,
including the creation and functioning of witness protection and
support units, and implement it fully;
16.7 the European Union to continue to make effective witness
protection an essential criterion for the setting up of a partnership
with the countries concerned, as well as to provide more manpower
to EULEX’s Witness Protection Unit;
16.8 all member states to:
16.8.1 accept
and organise the relocation of endangered witnesses on their territories, especially
those from Kosovo;
16.8.2 consider financing witness protection plans and adequate
training for staff in charge of carrying out this task, and consider
the possibility of bearing part of the living costs of witnesses relocated
in their country;
16.9 the international community to continue to provide funding,
expertise and training in witness protection and witness support
in the region;
16.10 the ICTY to:
16.10.1 consider
amending the Rules of Procedure and Evidence, so that, in extreme
cases, the identity of a witness can remain anonymous even to the
defence, in line with the case law of the European Court of Human
Rights;
16.10.2 set up a residual mechanism with a view to maintaining
witness protection after its mandate ends, for example by handing
over this mission to the International Criminal Court.
