Witness protection as an indispensable tool in the fight against organised crime and terrorism in Europe
- Parliamentary Assembly
debate on 30 January 2015 (9th Sitting) (see Doc. 13647, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Arcadio Díaz Tejera). Text
adopted by the Assembly on 30 January 2015 (9th Sitting).See
also Recommendation 2063
The Parliamentary Assembly, referring
to its Resolution 1784
on the protection of witnesses as a cornerstone
for justice and reconciliation in the Balkans, reaffirms that witnesses
who stand up for truth and justice must be guaranteed reliable and
durable protection, in particular legal and psychological support
and robust physical protection before, during and after the trial.
2 The Assembly recalls that witnesses can be particularly vulnerable
to perceived or actual threats and intimidation from perpetrators
of crimes against themselves and/or people close to them, especially
in cases of organised crime and terrorism.
3 Witness testimony is crucial to the proper functioning of
the criminal justice system in any State upholding the rule of law.
It is essential for the effective investigation and prosecution
of organised crime and terrorism, as it contributes to the dismantling
of powerful criminal structures, including transnational ones.
4 Organised criminality with a strong transnational reach has
increased in Europe due to globalisation, the abolition of border
controls within the Schengen area and the development of new communication technologies.
Witnesses requiring protection include not only victims of crime
or bystanders, but also criminals themselves. Without the co-operation
of “collaborators of justice” and their insider knowledge, effective investigation
of serious crimes and the dismantling of criminal structures would
be difficult, or even impossible. That is why sophisticated witness
protection measures, including “witness protection programmes” implying relocation
and even the change of identity of the witness or collaborator of
justice, have been developed over the last two decades.
5 Several international legal instruments call on States to
take appropriate measures to effectively protect witnesses from
potential retaliation or intimidation and to enhance international
co-operation in this area. The United Nations Convention against
Transnational Organized Crime and the United Nations Convention
against Corruption regulate this matter in cases of transnational
organised crime and corruption. Within the Council of Europe, rules
concerning witness protection are included in the Criminal Law Convention
on Corruption (ETS No. 173), the Council of Europe Convention on
Action against Trafficking in Human Beings (CETS No. 197), the Second
Additional Protocol to the European Convention on Mutual Assistance
in Criminal Matters (ETS No. 182) and Committee of Ministers Recommendations
No. R (97) 13 concerning intimidation of witnesses and the rights
of the defence, Rec(2001)11 concerning guiding principles on the
fight against organised crime and Rec(2005)9 on the protection of
witnesses and collaborators of justice.
6 The Assembly notes that, in the context of combating organised
crime and terrorism, although the Council of Europe has already
been active in promoting witness protection measures and programmes,
many discrepancies exist in their implementation. While certain
member States have acquired extensive experience in this field,
others appear less active.
7 The Assembly deplores the existence of numerous discrepancies
in these witness protection schemes and stresses the need for States
to co-operate in this area, especially in cases of relocation of
witnesses and collaborators of justice from small countries.
The Assembly considers that, in order to effectively combat
organised crime and terrorism, further steps need to be taken in
the area of witness protection. It therefore calls on member States
8.1 set up or, if need be,
revisit their witness protection mechanisms; witness protection
units should co-operate with law-enforcement bodies and should be
independent from the investigation and prosecution of the relevant
8.2 allocate appropriate financial and human resources to
bodies dealing with the protection of witnesses;
8.3 reconsider their rules on mitigating sentences and granting
immunity from prosecution in cases of organised crime and terrorism,
in order to provide greater incentives to collaborators of justice
to co-operate with the authorities;
8.4 produce statistics on the results of co-operation of witnesses,
including collaborators of justice, with the investigative and judicial
authorities in cases of organised crime and terrorism, in particular
on the number of convictions based on their testimonies;
strengthen international co-operation in the field of
witness protection, in particular by:
exchanging information and sharing best practices;
8.5.2 concluding, when appropriate, agreements/arrangements
on relocation of witnesses and other protective measures;
8.6 step up or, if need be, reinforce co-operation with relevant
international bodies, including Europol, Interpol and the United
Nations Office on Drugs and Crime.
9 The Assembly also recalls that, when setting up and implementing
witness protection measures and programmes, member States must respect
the right to a fair trial and the right of the defence. Any decision
to terminate a witness protection measure or programme should be
taken only after a comprehensive examination of the existing threats
to the life of the protected persons.