This lesson introduces victim and witness protection as a concept, through cases from various Asian countries. The distinction between victims and witnesses is explained, as is the importance of protection for the criminal justice system.
A. Threats to victims and complainants of abuse
Mrs Shahin Sultana Santa was severely assaulted by the Bangladeshi police on 12 March 2006 while she was waiting to pick up her son from school. Pregnant at the time, Santa was later forced to undergo an abortion, as her injuries caused medical complications.
After the Mohammdpur police station refused to file her complaints against the police officers, Santa lodged two cases at the Chief Metropolitan Magistrate Court of Dhaka (CMM), under the Penal Code and the Women and Children Repression Prevention Act respectively. Although the court dismissed all charges against the accused police officers on May 21, Santa is in the process of appealing the judgment.
From the time she lodged cases in the court, Santa and her family have been subjected to threats and harassment, including being implicated in false cases. On March 22, two cases were lodged with the CMM against Santa and her husband, Mr Atiur Rahman, a lawyer by profession. The first case involved charges of illegally claiming tolls, while in the second case Santa and Atiur were charged with theft. Furthermore, the investigating officers in both cases are the officers accused of assaulting Santa.
On March 23, one of Santa's witnesses, Mr Zakir, went to the Magistrate's office to give evidence regarding Santa's case filed under section 10/30 of the Women and Children Repression Prevention Act. Shortly after leaving the Magistrate’s office, Zakir was arrested. Similarly, on March 29, another witness, Mr Omar Farukh Keru was threatened by police inspector Nabo Jyoti Khisha, who said he would be implicated in 10 cases. The police have also been threatening other witnesses in Santa’s case by frequenting their or their relatives' homes.
Police harassment has also forced Santa and Atiur to flee their home. Regardless, on May 5, Santa's husband was attacked by eight persons on his way back from work, losing his mobile phone and 8000 taka. Again on May 24, he was accosted by unknown persons as he was leaving work. They held a gun to his chest and threatened to shoot him. Santa also continues to receive threatening phone calls. She has no recourse to protection, and is afraid that if she goes to the police to report any of these incidents, she or her family may be implicated again in false cases [see further: AHRC AS-114-2006, 24 May 2006; UP-114-2006, 25 May 2006; UP-112-2006; UP-101-2006; UP-096-2006; UP-083-2006; UP-062-2006; UP-058-2006; UA-105-2006].
The police in Bangladesh are notorious for their criminal and abusive behaviour. Just as notorious is the absence of any justice or redress for those having been abused. In fact, when victims such as Santa dare to seek redress, they face further abuse. Santa and her witnesses were harassed by the police, in order that all charges against them are dropped. Not even the court was able to serve justice to Santa.
Victims of abuse face a similar situation in Sri Lanka. Under the Sri Lankan constitution, citizens are able to file applications directly to the Supreme Court regarding violations of their basic rights, which provides an avenue for victims to seek redress. In this way, victims of police abuse, after filing complaints against their perpetrators, become witnesses in human rights cases. This however, inevitably results in the police further harassing the victims--directly or indirectly--with the intent to get charges withdrawn. These issues are detailed in the written statement made to the 61st session of the Commission on Human Rights by the Asian Legal Resource Centre (ALRC), sister organization of the Asian Human Rights Commission (AHRC).
1. On 8 and 9 January 2004 D.G. Premathilaka was arrested and tortured by officers attached to the Katugastota police station, Sri Lanka for giving up his illicit liquor business--which is profitable for many police officers. Following this, Premathilaka lodged a complaint, the outcome of which is still ongoing. On 16 November 2004, officers from the same police station threatened Premathilaka demanding that he withdraw his complaint made against them. Following this Premathilaka lodged a second complaint with Sri Lankan authorities, including the Human Rights Commission of Sri Lanka.
2. Despite two complaints having been lodged against police officers from the Katugastota police station, a further incident of torture against Premathilaka has taken place. On 23 January 2005 at about 2am, Premathilaka was tortured by 12 police officers, including the Officer-in-Charge, from the Katugastota police station. The officers broke the lock of Premathilaka's front door and forced their way into the house. Claiming that a warrant had been issued for Premathilaka's arrest, the officers dragged him out of his house and into their jeep.
3. The following day Premathilaka's wife went to the police station. She could see that her husband's sarong was wet with blood and he complained to her about the brutal assault he had received. At 1pm on the same day, Premathilaka was presented before the Kandy Magistrate and a lawyer--appointed by the same police officers who had beaten him--appeared on his behalf. On January 25 Premathilaka had to appear before the Kandy Magistrate again, where he was charged with selling illicit liquor. He was not granted bail and remained in custody until February 8. The purpose of instituting new charges against Premathilaka and getting him remanded was to obstruct him from pursuing a further complaint against the police and getting proper medical treatment.
4. This is the reality of seeking justice in Sri Lanka today. Retaliations against those who lodge complaints against the police are on the increase and there is little done to rectify this situation by way of providing witness protection. Gerald Perera was killed only days before he was to give evidence in his own torture case against the police. When the perpetrators were finally arrested, it was revealed that they were the three police officers who are accused of torturing Gerald.
5. Torture victim Channa Prasanna Fernando, into whose case an inquiry was being conducted, was kidnapped and an attempt was made on his life, which he only narrowly avoided. While two cases against the perpetrators were then ongoing, there was a third attempt on Channa's life one night while he was sleeping. He was able to run away and is now in hiding.
6. In the case of Lalith Rajapakse, he was repeatedly threatened and intimidated. As a result, he is currently in hiding. His family, meanwhile, has received police protection, as has human rights activist ULF Joseph, after he was threatened for having helped Lalith.
7. Amarasinghe Morris Elmo De Silva, who was allegedly tortured by officers of the Jaela police station, was forced to flee the country due to threats to him and his wife because of a case against the perpetrators ongoing at the Negombo High Court.
8. As shown in the cases above, criminal behaviour by police officers, including threats and intimidation to complainants of police abuse, occurs with impunity in Sri Lanka. These officers are allowed to continue in their posts with no disciplinary action taken against them. Not only does this encourage further criminal behaviour, but it denies any personal security for those who seek justice for crimes committed against them ['Threats and intimidation to those who seek justice in Sri Lanka', E/CN.4/2005/NGO/108].
The above cases glaringly spotlight the life threatening obstacles faced by those who speak out and make complaints against the abuse they have suffered. This situation is worsened when victims are making complaints against state officers; Asian countries have a serious lack of independent complaint mechanisms against state officers, particularly the police. This means that any complaints to be filed against police officers have to be made to the same police station, or at best, a police station in a different locality. Furthermore, even when complaints are not against the police, most crimes are committed with the knowledge and/or collaboration of the police, as seen in Premathilaka's illicit liquor business. Witness protection in these cases thus means protection from the police.
However, a common experience around Asia is to have the police force provide protection to individuals. This is problematic for two key reasons. First, if the perpetrators are themselves police officers, the victim will not feel secure by having fellow police officers around. As mentioned above, Gerald Perera was killed by persons on the behest of the police officers he was to testify against [click here for detailed information]. Second, the police are not in fact properly trained or equipped to provide protection. As officers providing protection to Angkhana Neelaphaijit, wife of disappeared Thai lawyer Somchai Neelaphaijit was told, they had not been assigned such an assignment previously, and were not given guidelines on how to proceed [more details are given in Lesson 2; also see http://www.ahrchk.net/somchai/].
B. Threats to witnesses in criminal cases
All victims of abuse are also witnesses. In fact, as eyewitness to the incident, they are the most important witnesses to the case; some cases are not able to be proved without eyewitness testimony. Not all witnesses however, are victims; they may be bystanders or relatives of victims. They can however, become victims of threat and intimidation for testifying in court. Witness protection is therefore an essential part of ensuring justice and fair trial. Unfortunately, even at the stage of court trials, few Asian countries have mechanisms in place to provide such protection, as the following cases indicate.
On 10 October 2005, a 23-year-old woman was allegedly raped by airport officers at the Bandaranaike International Airport in Katunayake, Sri Lanka. The victim was threatened at knife-point and forcibly drugged before being raped. She was then put onto a flight to another country immediately after the incident.
The victim identified airport security officer Mervyn Nissanka Anthony of Mulleriyawa North as the main suspect at an identification parade before Negombo Acting Magistrate Indra Peiris on October 28. Mervyn was then arrested together with four other suspects.
At this time, in court, a female relative of Mervyn threatened to kill the victim for taking action against the alleged perpetrator. Moreover, the perpetrator signalled a shooting action with his hand to the husband of the victim through the window of the prison bus. Fearing for her security, the victim informed the police that she would withdraw the case filed against the suspect. Police at the Bandaranaike International Airport complained about this matter to the Negombo Magistrate and Additional District Judge Kanthi Wanigasekera, who then refused to grant bail to the suspect and ordered him to be remanded until November 21. The other four suspects were released on bail. However, no witness protection has been provided to the victim and she still fears for her life and suffers from acute mental stress and humiliation.
A few days after the identification parade, the victim received anonymous telephone calls threatening to kill her. Suspicious persons were also loitering about her residence in Wellawa, regarding which she made a complaint to the Wellawa police.
Further calls were made to the victim's family members on November 3 and 6, saying "Can't you remember me? Can't you recognise me? Don't go to court. If you want to settle the matter out of court, come to Colombo. If you come to the court, you will be killed." The November 3 call was made from a telephone bearing the number 0777 436 087. A further call was received on 12 January 2006 from an unidentified number and threats were again made that if the case went to court, people would be killed. Again, on 11 February 2006, a call was received with the caller saying "A contract has been given to murder you all. Don't try to struggle too much. We have discovered all your whereabouts. If you all come to court, you will be killed."
Following these threats, a second complaint was lodged at the Wellawa Police Station on 24 February 2006. However, the police have been unable or unwilling to take effective action against the perpetrators and made the victim feel secure. For this reason, the victim and her family are now frightened in pursuing the case, assisting in the investigation and appearing before the court [see further: AHRC UA-183-2005, 21 October 2005; UP-127-2005, 1 November 2005; UP-149-2005, 28 November 2005; UP-151-2005, 1 December 2005; and UP-065-2006, 31March 2006].
As the attorney general of Sri Lanka has himself noted, the country's four per cent conviction rate is primarily due to the reluctance of witnesses to testify against crimes.
In the Philippines, there are an alarming number of activists killed daily. Witnesses to these killings are reluctant to come forward to testify, which has resulted in the authorities' inability to prosecute those responsible. The AHRC has closely documented many of these killings, none of which have led to criminal convictions. In an open letter to the Department of Justice dated 11 January 2006, the AHRC referred to several of these cases.
Mr Norman Bocar, a lawyer from Eastern Samar, was killed on 1 September 2005. Prior to his death Bocar sought the help of the police for his security following serious threats against his life. It is not known however, whether the police acted on his request. The police investigation into his death has reached no conclusive findings and the perpetrators were not identified. The police formed "Task Force Bocar" to investigate the killing but this has failed to bring any justice to this case.
Mr Joel Reyes was killed on 16 March 2005 in Panganiban, Camarines Norte. The lone witness to his case, Dario Oresca, was also slain before he could testify in court. Even though the local police were aware of the threats made against Oresca, he was not placed under any protection. In a letter to the AHRC, the Commission on Human Rights (CHR) regional office in Naga City, the Commission's special investigator, Raymundo de Silva admitted failure of the RA 6981 [Act for Witness Protection, Benefit and Security]. De Silva said that the programme was not yet thoroughly understood by the populace.
Although De Silva concluded in his findings that the killing of Reyes and Oresca could have been perpetrated by a reformist armed group critical of the communist movement and identified two alleged perpetrators, named only as Ka Clito or Ka Abril and Ka Darlin or Ka Love, these persons have not been located. Thus, the case will be highly jeopardised by the absence of a prosecution witness in court.
Mr Felidito Dacut, a human rights lawyer, was slain on 14 March 2005 in Tacloban City. In a 30 May 2005 letter received by the AHRC from the Commission on Human Rights (CHR) regional director, Mr Paquito Nacino stated that the witness in his case, Felix Dumlao, could no longer be located, thus jeopardising the process in prosecuting the perpetrators. Dumlao soon after went into hiding in fear for his life. The AHRC is unaware of any action taken by the government to locate him or provide him with security under RA 6981.
Mr Alfredo Malinao and Fr. Edison Lapuz were slain on 12 May 2005 in San Isidro, Leyte. An inquiry conducted by the CHR regional director, Mr Nacino has revealed that their relatives are either reluctant or not cooperating in their inquiry. The relatives' reluctance to cooperate does not constitute a disinterest in pursuing this case, but rather demonstrates the fear they have for their security should they become involved [AHRC-OL-002-2006, 11 January 2006].
The reason for the killings themselves is the lack of protection afforded to the activists and human rights defenders. Although the Philippines has a protection law, it is not effective or properly implemented. It is therefore not surprising that witnesses to the killings are not willing to come forward. For instance, activist Elena Mendiola suffered an attempt on her life in March 2006, but was not given any protection. On 10 May 2006, Elena and her partner Ricardo Balauag were shot dead in in Barangay Garit, Echague, Isabela. Witnesses to Elena and Ricardo's killings are reportedly afraid to testify, also due to the lack of protection.
In fact, a task force established on May 12, Task Force Usig, to investigate the current rampant killings has publicly admitted that one of its great difficulties is the reluctance and unwillingness of witnesses to cooperate.
The reluctance of witnesses and victims' families to cooperate with police investigators comes as no surprise. The police have themselves been implicated in the abductions and killings. For instance, one of the three hooded men who attempted to take the life of labour leader Gerardo Cristobal in Imus, Cavite on April 28 was allegedly police intelligence officer SPO1 Romeo Lara. In many other cases too state agents are suspected of involvement.
Although Task Force Usig has publicly recognised that it has a problem with cooperation by witnesses and relatives of victims, it has not yet recognised that the reason for this is the lack of effective witness protection in the Philippines. In fact the failing undermines the country's entire judicial system. The government and Commission on Human Rights of the Philippines too have publicly accepted that these killings are a "gross violation of rights" and a "failure of the justice system" without making this connection, and taking steps to remedy the situation by legislative and judicial means…
Task Force Usig must begin its work by recognising witness protection as the overriding concern. It must work with the Department of Justice to make Witness Protection, Security and Benefit Act (RA 6981) reality. The success of Task Force Usig's investigations, and any subsequent trials, depends on this, as does its reputation and that of the justice department [AHRC AS-120-2006, 26 May 2006].
Implications for trials and justice
As the above cases clearly indicate, protection is essential for the participation of witnesses and victims of human rights violations within the justice system. Apart from the suffering they themselves experienced or witnessed, they will be aware of the impunity granted to perpetrators, as well as the dire consequences facing those who dare to seek redress. Under these circumstances, with no recourse to protection and support, there are few persons who will come forward.
A justice system depends upon evidence being collected and brought before the courts. If fear prevails, evidence cannot be collected. When evidence is not collected, the courts either do not take up cases or dismiss the charges against the accused, as the judge can only consider what is brought before the court. In this manner, the perpetrators of torture, extrajudicial killings and forced disappearances routinely escape justice.
Just as the outcome of a case depends upon the quality of evidence presented to the court, the quality of evidence depends upon the investigation, from its earliest stages. If a complainant is unafraid and comes forward shortly after a crime, describes in detail what happened, points to other persons and materials that substantiate this account, is supported by other witnesses and does not change the account, the case will probably be a success. By contrast, if a complainant is fearful and has low expectations of the courts, coming forward only much later if at all, reluctantly giving details of what happened and who else may be able to substantiate the story, and under pressure changes the account, the case is unlikely to succeed. In human rights cases especially, the determining factor between one outcome or the other is protection.
Witness protection is also about how a judge exercises authority. In a developed legal system, the judge asserts the prerogative to make decisions on how the case is handled. Respect for that authority is determined by the extent of respect for fair trial. Where fair trial is respected, judicial orders are upheld. Where fair trial is sabotaged, judicial orders are mocked. When the accused is able to get rid of prosecution witnesses or cause them to reverse earlier testimony, the court also is made into a cruel parody. Whatever formal gestures the judge may make, the authority of the court is diminished.
The authority of a court and respect for fair trial are put to the greatest test when state officers are the accused. A law enforcement officer has many more means than an ordinary person to ensure that complaints against him are never heard by a judge. Where they are heard, he has still many other means to reduce a trial to farce. In most cases against law enforcement officers in Asia, witnesses are too afraid to appear in court. Where they do appear, they deny earlier testimonies or lie blatantly in a desperate attempt to escape retribution.
So the absence of witness protection and the absence of fair trial are one and the same. When the public understands that the courts are in the hands of police and politicians and even the best judges can be manipulated and cornered, the entire system loses credibility. Where judges are active participants in this charade, the very notion of justice will be lost to the society. Where a case is repeatedly postponed because witnesses have not appeared or alleged perpetrators are acquitted "for lack of evidence", although the judge may be acting within the law in fact the effect is that the court is making a mockery of itself. Under these circumstances, institutions of justice lose all credibility.
C. State obligation to provide protection
To ensure fair trial and the administration of justice is the obligation of all states, under international (ICCPR article 14) as well as domestic law. Victim and witness protection, as mentioned above, is essential to fair trial. It therefore follows that states are obliged to provide such protection.
Furthermore, international law also obliges states to ensure that victims of human rights violations have recourse to effective remedies (ICCPR, article 2(3)). Remedies for any violation must include the prosecution and punishment of perpetrators, as well as suitable reparation for victims. In seeking these remedies, victims and witnesses must not be intimidated or threatened; the circumstances present in most Asian countries require that protection be provided in order for victims and witnesses to effectively obtain remedies.
Other obligations under the ICCPR that hinge upon states having an effective witness protection programme include the right to life (article 6), freedom from torture and cruel, inhuman or degrading treatment of punishment (article 7), right to security of person (article 9) and freedom of movement (article 12).
Implementation of the rights guaranteed under international law requires effective legislation and competent authorities. However, there are few Asian countries that have such effective measures regarding witness and victim protection. Most countries have no provisions at all, including India, Sri Lanka and Bangladesh, while a few such as the Philippines and Thailand have ineffective provisions.
2. Indonesia: A long-awaited Witness and Victim Protection Bill is still in draft. Apart from measures to give assistance to witnesses and victims, the draft imposes serious penalties on persons who attempt to stop witnesses from appearing court, or inform others of their whereabouts and identities. However, even before the bill has been completed the chairman of the drafting committee has proposed that the witness protection agency be under the police, rather than properly independent. Unfortunately, placing the task of witness protection in the hands of the police completely defeats its purpose... Meanwhile, the Indonesian security forces and paramilitary groups continue to operate with gross impunity right across the archipelago, and human rights defenders and victims face serious and systematic threats on their lives, as well as those of their colleagues and families.
3. India: There is no national-level scheme or guidelines for witness protection, and some states have no laws to protect witnesses and victims. The trials of persons accused of mass killings in Gujarat during 2002 descended into farce after witnesses constantly changed their testimonies due to a systemic campaign of intimidation by the state authorities and powerful nationalist groups, coupled with a lack of witness protection. In most parts of the country, witnesses brought to court in cases against rich and powerful people turn hostile, making a mockery of the law and India’s pretensions to human rights and democracy. The police in many areas work together with corrupted judicial officers and criminals to intimidate and murder with impunity, through use of "crossfire" encounter killings and mob attacks on persons and property. The country’s enormous bureaucracy remains largely inert and complicit, and countless judicial reform committees and commissions have paid virtually no attention to witness protection.
4. Sri Lanka: There is no witness protection programme of any sort. The exceptional collapse of the rule of law there, and very strong nexus between the police, politicians and criminals, together render the state incapable of protecting witnesses and victims of crime, even if it had the will to do so. Citizens’ groups have instead organised their own programmes, with great difficulty, to relocate and hide victims of police torture and other abuses. Nonetheless, Sri Lankans who have dared to speak out and press complaints against state officers have lost their lives as a consequence ['Protecting witnesses or perverting justice?', ALRC, 2006].
Protecting witnesses is a duty of the state. This is a fundamental and globally-established principle. Where the state declines to protect witnesses, it denies justice to society. The state must find the people, money and means to do this. A state that talks about witness protection but does not allocate funds and resources for that purpose fails in its duty.
But the real problem in setting up a witness protection programme is not money; it is about the place of witness protection in state policy. Where the importance of protecting witnesses to obtain justice is understood and articulated, an authority to give effect to this policy can be quickly established and developed. There are many available resources for such work these days. Where witness protection is limited or non existent it is primarily a question of understanding and official will.
What should be expected of a proper witness protection programme? It must be easily accessible. It must be widely known and its role understood. It must respond promptly to requests. It must have a range of alternative forms of protection available to witnesses, including special protection in courts. It should also be able to protect identities when required. It must respect confidentiality. A working protection scheme of this sort will win public confidence, support and cooperation, and have profound effects on the working of the country's entire judiciary.
Questions For Discussion
1. Do you know of similar situations, where victims or witnesses of violations have been further threatened, or have been afraid to testify?
2. In your opinion, what other issues are involved in the protection of such individuals?
3. Discuss the relationship between protection and
a. The participation of individuals in civil society;
4. Are you aware of any legal provisions for victims and witnesses in your country? If so, how effective are they?