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Witness Protection - How to Solve the Problem?
E.E.Kondratyev, Reviewer-in-Chief of the Office for Special Command (FSB of Russia)
Efficiency of production with regard to criminal cases to a considerable degree depends on the system of security guarantee of victim, witness, suspect, defendant and the officials dealing with the criminal case. Such system shall become effective in case of encroachment upon or threat to life, health or property aimed at prevention of their obligations as well as official and civic duties fulfilling in the area of legal procedure.
In Russian Federation where organized crime seems to more and more threaten national security the issues of protection of criminal procedure participants from criminal tresspass are of particular importance. Finding of truth with regard to criminal case becomes problematic due to the fact that witnesses and victims fearing violence over them and their relatives as well as direct or implied threats avoid participation in investigation and consideration of cases.
In recent years growth of number of unlawful encroachments upon life, health and property is observed. Threats, intimidations and unlawful acts are applied towards the members of their families. Criminal impact also takes place with regard to judges and officers of law machinery who investigate criminal cases1.
Growth tendency of norms which are intended for ensuring rights and freedoms of humans is noted both in international law and in national law of foreign countries where witnesses and other criminal procedure participants protection is one of the main priorities of law machinery.
Such a peculiar attention to the problem may be explained by different factors. One of them is a significant rise of criminal activity on the grounds of terrorism and organized crime. As a result normal functioning of both system of criminal justice and state as a whole is put in jeopardy. With all this going on the whole arsenal of means is used: threat of violence, court officials bribery, systematic intimidation and physical removal of witnesses.
Official statistics shows growth of total number of crimes committed in RF. The number of only registered crimes for the last 10 years almost 2 times increased. During this term almost 10 times rise of number of crimes labeled "committed by an organized group" was noted. The amount of the most complicated in terms of investigation offences in the sphere of credit and finance increased by 39.2%, in foreign economic activity - by 88, 5%, in the area of privatization - by 56.5%2.
In the Russian Federation they repeatedly attempted to create the system of criminal procedure participants protection and to fix on legislative level. Starting from the middle of 90th in RF State Duma two federal draft bills were prepared with regard to the issue: "About state protection of judges, officials of law machinery and supervising authorities" and "About state protection of victims, witnesses and other persons assisting public justice". The first one envisages a complex of measures of organizational, social and legal nature aimed at protection of life, health and property of people dealing in investigation and inquiry; legal investigators, public prosecutors, judges. The law includes many instructions and ideas which are imposed by real life. But are the envisaged measures effective? And what does their application in real life depend on? Today there is no complex study on this subject. That is why this law application practice requires thorough development aimed at further account and introduction of required corrections.
For example, in the USA the system of criminal procedure participants protection is not an exclusive privilege of only one state body. In the USA it is multi-level, i.e. both federal authorities and authorities of States and separate municipal settlements take part in it. In this connection one may note not a "separation" but a "joining" of powers in this area. So, for example, marshal service is mainly in charge of "technical" matters, i.e. it independently effects activities aimed at provision of security of a certain person. Authorities of States usually provide housing for transfer of witness (other participant of the procedure), his/her family. Counties' and cities' authorities deal with employment of the people and rendering psychological and other assistance to them.
The resources are provided by US Congress from the budget and it is represented by supply of service with transport means, communication, special equipment, arms etc.
Information supply of protective activity consists in provision of information about the system of population protection both inside the United States and abroad. So today it is difficult to find a person unaware of such US system allowing criminal procedure participants to give evidence during preliminary investigation and before court not fearing threats or criminal tresspasses by criminals.
The lot of the second draft bill occurred to be less fortunate. It contained a lot of defects and due to this it is not approved up to now. Among the reasons why it was not adopted its inconformity to a number of fundamental legal acts such as General Declaration of Human Rights on 1948, International treaty on Civil and Political Rights on 1966, European Convention of Human Rights and Fundamental Freedoms Protection (ratified by RF) which proclaimed the right of the defendant to inquire witnesses giving evidence against thereof or to demand them to be inquired as well as the right to summon and inquire witnesses of for the defense on the same terms as for the witnesses for the prosecution.
This draft bill did not conform to the norms of RF Constitution and to instructions of Procedural Criminal Code and, in particular, whose concerning publicity, directness when evidence studying, equal rights and controversy of the parties; right of the defendant to be defended3.
But we suppose that the real reason why it was not adopted consists in something else- lack of united concept, united and holostic approach to solution of problem of criminal procedure participants protection.
Analysis of draft bills which were from time to time developed and introduced by RF State Duma revealed that the method of their treatment was the following: a fundamental selection of measures aimed at protection (for example, measures of security and measures of social protection) was taken as a core and later it was adopted to normative basis swaying back and forth. Further around the "skeleton" a "body" was created: the circle of people to be protected was determined as well as the order of protective measures application, rights and obligations of bodies in charge of protection and of the people to be protected. Such approach seems to be not entirely correct as it has a number of conceptual disadvantages.
The first one is that such draft bills are isolated from the existing legal system and normative basis. Many law experts point out that the problem of criminal procedure participants protection can not be solved only by a separate law adoption. The experience of foreign countries proves that legal institution of criminal proceeding participants protection is inter-branch, it touches upon the relations regulated by various law branches: criminal, procedural criminal, criminal executive, administrative, civil, budget etc. That is why all-inclusiveness of amendments introduction to the existing legislation as well as all-inclusiveness of impact on social relation shall underlie the approach to the problem. The all-inclusiveness envisages approval of provisions of draft bills developed by respective institutions of the said law branches, on the one hand, and alteration of branch legislation, on the other hand.
The analysis of draft bills which were developed proves that their authors did not quite understand the size of protection system which was actually envisaged by the draft bill. Here the word "size" shall be understood, on the one hand, as integration rate of innovations introduced by the law and branch law as well as the volume of legal relations which could be affected by the law in case of its adoption and, on the other hand, frequency of measures application, their number and cost.
Another defect of authors' work may be considered the fact that the problem of criminal proceedings participants protection was planned to be solved by means of several "defense" bodies only. However as the world practice shows attraction of forces and means of a wide range of public and non-governmental organizations is required for this activity.
All the draft bills that were developed from time to time lacked clear understanding of the "technology" of protective measures application. Who makes decision on protective measures application? Does this decision require approval of, say, public prosecutor or court? What is the subject executing the decision? What is the order of execution? What is the responsibility of officials and state as a whole in case of non-performance of undue performance of protection-connected obligations?
That is why it is obvious that a number of conditions is needed to create a system of criminal proceedings participants protection. First of all, it is development of united concept of protection.4 Such concept does not have to be represented by a separate document. More likely is should consist in a doctrinal system of opinions, determine the general trends of formation of institute of criminal proceedings participants protection.
The second condition is to coordinate the proposed innovations with norms of both international and national law. International normative and legal acts though being as a rule not compulsory for states nevertheless contain the principles and standards of state protection of criminal proceedings participants. The following may be included in such principles and standards:
- provision of proficient Legal Remedy to any person whose rights and freedoms were infringed due to illegal impact from criminal elements because of the persons' participation in criminal proceedings5;
- availability of court authorities capable to provide prompt and just investigation as to ensure everybody's best security and protection of rights and freedoms6;
- obligation of state to take measures aimed at protection of plaintiff and witnesses from any forms of treatment and intimidation in connection with their participation in criminal proceedings7;
- set up of proper machinery which guarantee the rights and freedoms of criminal proceedings participants as well as provision of due resources for this8; cooperation of states and rendering assistance during implementation of measures aimed at criminal proceedings participants protection9 and a number of other ones10.
We should also take into account that in conformity with RF Constitution generally recognized principles and norms of international law and RF international treaties are the integral part of its legal system11. National legislative acts must not conflict with RF international treaties as well as with generally recognized principles and norms of international law. That is why orientation to international standards of human rights and freedoms protection will let significantly speed up creation of effective system of protection of rights of criminal proceedings participants during investigation of criminal cases and trials.
Legal control of criminal proceedings participants protection is the foundation for the activity. At the same time in the countries of both continental and Anglo-Saxon law systems the prevailing form of legal control of this sphere of social relations is its fixing by law, normative act of supreme juridical power adopted by the supreme legislative authority of the state12.
The aggregate of general compulsory maxims and recommended norms fixed both in international legal acts and in national legislature provide a legal basis for solution of problem of state protection of criminal proceedings participants protection.
Reference to overseas practices of legal control of criminal proceedings participants protection demonstrates that the problem has not been always easily and promptly resolved. Often a significant preparatory activity of many state bodies preceded this. For example, FRG did not have a legal control of criminal proceedings participants protection for a long time. Separate measures taken by police departments and officers of law machinery were mostly based upon agency-level by-laws of MIA and Ministry of Justice which often were contrary to the existing legislation. In this connection the following statistics is revealing: in 1992 special security measures were applied to 372 witnesses, and if taken together with their family members, the total number of the protected accounted for 657 people13. From 1995 to 1996 federal law machinery and law-enforcement bodies of the Lands of dealt with 480 cases. In their frameworks measures aimed at protection of criminal proceedings participants (mainly witnesses) were taken.14 The measures aimed at protection of witnesses were applied in accordance with the joint directive of group II "Domestic security" included in Meeting of Lands' Ministers of Internal Affairs. Activities aimed at witnesses protection in the light of legal control was based on institution of extreme necessity as well as on other provisions of national criminal law. In 1989 Ministry of Internal Affairs and Ministry of Justice of FRG produced a joined committee in order to solve the problem of organized crime. Concept of Witnesses Protection were developed; on its basis in 1990 General Instruction by Federal and Land Ministers of Justice and Internal Affairs with regard to Protection of Endangered Witnesses were adopted. The documents fixed the targets, aims and functions of the bodies in charge of protection of people assisting criminal proceedings. The fact that more and more legal acts touching upon rights and freedoms of citizens and interests of the third parties were adopted upon departmental and inter-departmental levels as well as necessity to regulate the legal relations arising in the area resulted in development and adoption in FRG of law "About control of matters of endangered witnesses protection" in 1998. In the comments concerning the necessity of the legal act adoption the German criminologists stressed growth of qualification and cooperation of organized crime in the country15 (we consider that this may be lawfully applied to the features of crime in Russia where the scales of crime's spreading really threaten the state security).
Besides that significant alterations were introduced in legislation of other branches: Code of Social Law, laws "About registration at the place of residence", "About passport system", "About road traffic", "About identity cards", "About surnames and names change ", "About citizenship", "About income tax" and a number of others16. It is evident that the issues of protection of criminal proceeding participants in Germany were resolved on the grounds of comprehensive approach. Thus more that five- years experience of application of law about protection of criminal proceeding participants could be considered in legislative and law-enforcement practices in the Russian Federation.
We have to clearly understand that adoption of such law in RF is not yet a final solution of problem of criminal proceeding participants protection. It will be just a beginning of substantial work aimed at the existing legislative basis upgrade as well as at practical realization of protective activity.
Besides that building of effective system of witnesses and victims protection is impossible without respective organizational, resource, information and other types of this activity support. As O.A. Zaitsev fairly notes "organization of state protection of criminal proceeding participants includes conceptual matters of administrative nature, resource and information support... of state protection"17; if the matters remain unresolved it will be impossible to bring the above into practice. "These issues relate to formation and support of activity of special sub-units called upon to realization of security resources; organization of interaction of these sub-units and inquiry, investigation, public prosecution and court authorities; functioning of social and legal system of protection of criminal proceedings participants; set up of special funds for assistance to victims of unlawful acts and other problems of administrative level. Their successful solution in many respects predetermines success of public defense of subjects of procedural criminal relations as a whole"17. Without implementation of the said provisions, without a due basis for protective activity with regard to participants of criminal proceedings there is no point to speak about effective operation of the system of their protection.
Notes:
1. Letter by RF Ministry of Justice to State Duma of 18.02.94 No 06-70/92-94.
2. See: Soloviov N. Reform of investigating agencies: from re-distribution of investigative jurisdiction to modernization of Criminal Code// Russian Justice. 2000. No 12.p.2.
3. See: Paleev M. Why President of Russia declined the law about victims and witnesses protection// Russian Justice. 1998. No 1. p. 8; Pertukhin I.L. Protection of people assisting justice// Sate and law/ No 1.1999. pp.70-74.
4. Necessity of such concept is explained by O.A. Zaitsev. See: Zaitsev O.A. Theoretical and legal basis of public defense of criminal proceedings participants in the Russian Federation. M., 1999.
5. The provision results from analysis of Clause 3, Article 2 "of International Treaty about Civil and Political Rights" adopted by resolution 2200A (XXI) of UNO General Assembly of 16.12.66.
6. Caracas declaration adopted on 05.09.80 at VI UNO Congress on crime prevention and treatment of law breakers.
7. Convention against tortures and other cruel, inhuman or humiliating treatment and punishment, adopted by Resolution 3452 (XXX) of UNO General Assembly of 09.12.75.
8. International terrorism preventive measures (Clause 22, 23, 25). Adopted by VIII UNO Congress on crime prevention and treatment of law breakers/ (Havana, Cuba, August 27- September 7 1990).
9. Ibid, Clause 22, 24, 26.
10. See, e.g.: Biryukov P.N. Role of international legal norms in support of "right to legal defense" // Jurisprudence. 1992. No 2. p.24; Kolosov Y.M. International standards in the area of human rights and problems of Soviet legislation// Soviet Magazine of International Law. 1991. No 2. p.67-68.
11. Section 4, Article 12 of RF Constitution.
12. See for details: Brusnitsyn L.V. Legal grounds of protection of people assisting criminal justice. M., 1999.
13. Forms of organized crime combating. M., 1989. Edition 18, p.7.
14. Kazakova V.A. New law about social and legal defense of witnesses in FRG// State and Law. 2000. No 9. p.75.
15. Ibid. p.74.
16. Ibid. p.80.
17. Zaitsev O.A. Works guide. p.99.
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