RESOURCE MATERIAL SERIES No. 58

GROUP 2
PHASE 2METHODS FOR OBTAINING THE COOPERATION OF
WITNESSES TO PUNISH ORGANIZED CRIMINALS: THE
IMMUNITY SYSTEM AND WITNESS PROTECTION
PROGRAMMESChairperson
Co- Chairperson
Rapporteur
Co-Rapporteur
Members

Visiting Expert
Advisers

Mr. Ramend Hem Raj(Fiji)
Mr. Tosihiro Fukushi(Japan)Mr. Ricardo Tiuseco Pamintuan(Philippines)
Ms. Keiko Hoshi(Japan)Mr. Hiroyoshi Amamoto(Japan)Mr. Shuichi Inoue(Japan)Mr. Sengsouvanh Chanthalounnavong (Laos)
Mr. Hubert Sareke(Papua New Guinea)
Mr. Suwits Savaengthong(Thailand)
Dr. Johan Peter Wilhelm Hilger(Germany)
Prof. Hiroshi Iitsuka(UNAFEI)
Prof. Shinya Watanabe(UNAFEI)

I. INTRODUCTION
In battling transnational organizedcrime (TOC), early detection and effective
law enforcement must be complemented bysuccessful prosecution. To prevent TOC or
to convict members of criminalorganizations who have committed them,the essential factor that must always be
considered is evidence. Vital documents
as well as the fruits of the crime, such as
illicit drugs or firearms, constitute physicalevidence. Still, it is often ideal to present
the testimony of certain persons - like police
officers, undercover agents, informants,
civilian witness, the victims, and, if
necessary, some of the defendants
themselves - in order to link the physicalevidence to the accused or suspect. In cases
involving TOC, the personal safety of
witness for the prosecution, as well as thatof the members of their families, may beplaced in jeopardy due to the ferociousnessof criminal syndicates and the vast power
and influence that they possess. Thus,

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there is a need for all nations to consider afeasible immunity system, as well as acomprehensive witness and victim
protection programme, or to strengthen
those which are already in existence,
There are countries which already haveboth of these mechanisms in place. Somehave one or the other, while others haveneither. Some are equipped with highly
advanced systems, even as others are stillin the formative or experimental stage.
Additionally, as a rule, these laws do not
specifically apply to TOC, but they may,nevertheless, be effectively used in cases
involving TOC. The aim of this paper is topresent some of the existing legal
structures on immunity system and on
witness and victim protection in order toshare the information with nations whichhave yet to integrate them into theirrespective bodies of laws.

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
II. IMMUNITY SYSTEM
A. Scope
Immunity generally refers to the process
of exempting from prosecution a person
accused of a crime. This is particularly
encouraged under Article 26 of the Draft
United Nations Convention on
Transnational Organized Crime, which
deals with measures to enhancecooperation with law enforcement
authorities. 1 As used in this paper,
however, and in order to maximize thepotential of witness cooperation as a toolfor combating TOC, immunity will also be
considered, in a limited sense, as a
mitigation of sentence for suspects or
accused persons who cooperate in acriminal investigation.
B. Objectives
There are various reasons why
immunity is sought or suggested.
Principally, the testimony of a person who
is party to a crime is very reliable becauseof his relationship with his co-accused. Anystatement obtained from him, assuming it
has passed the twin evidentiary tests ofcredibility and materiality, in can always
strengthen a case or actually build one.
At the investigation stage, a Statewitness can reveal the identity of othersuspects, eventually leading to furtherarrests. At times, his statements can also
assist the police in locating the victim of acrime. Still, in other cases, he may pointout the corpus delicti or the body of thecrime. This is precisely the situation in
Brazil, where, although no specificimmunity system is in place, a criminal’s
sentence may be mitigated if his
cooperation results in any of these three.
Granting immunity from prosecution
has actually led to the solving of many1

See Annex A for the full text of this article.

serious crimes, as in the Fiji Islands andThailand. And as far as organized crimes
are concerned, Italy with its age-old
problem with the mafia, came up with a
Witness Security and Benefit Programme
in 1991, which provides immunity to people
who are willing to testify against the mafia
dons. Although this law is in the processof amendment, the use of an immunity
system is perceived to be a very effective
tool in prosecuting terrorists or membersof the families in Italy. If ordinary
witnesses are reluctant to come forwardwith information that may help in solvingorganized crimes, people who have actuallyparticipated in such crimes are even morehesitant of downright unwilling to
implicate the mob, whose reputation for
immediate retaliation has sown terror intowns controlled by the mafia.
Still, in other countries like India, Korea,
Nigeria, Pakistan, and Uganda, immunity
may be granted so that the prosecution ofa certain case may find more success using
the evidence that the State witness may
provide. Stretching the definition of
immunity further, the Philippines enacted
a law 2 providing immunity to givers ofbribes in graft and corruption cases, a pieceof legislation intended to eliminate thereluctance of such bribe-givers fromcooperating in the investigation for fear ofprosecution.
C. Procedural Requirements
The most common requisite in availingof immunity from prosecution is that an
accused-witness must cooperate with thegovernment by voluntarily making a full
disclosure of facts and circumstances
relevant to an offense for which he andother persons are being charged orinvestigated.3 Some countries have more
stringent requirements, including theabsolute necessity of the testimony and the2

Presidential Decree No. 749.

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RESOURCE MATERIAL SERIES No. 58
possibility of corroborating its material
points using other evidence. In such case,the accused must not appear to be the mostguilty among two or more accused persons,and he must never have been convicted ofany crime where his integrity was placedin doubt. 4
The grant of immunity is purely
discretionary, so it can be withdrawn atanytime by the grantor if the grantee fails
to fulfill his obligations under the terms
and conditions of his immunity. 5
At this point, it may be expedient todescribe in more detail the immunity
systems in two of the countries that haveextensively dealt with organized crime andhow they are utilizing this method in theirfight against TOC.
In Italy, statements by a cooperating
defendant have been used for 30 years, but,
as stated earlier, it was only in 1991 that awitness security and benefit programme
was formally adopted. There is now a bill
pending in the Italian Parliament for theamendment of this law. The bill limits thescope of the cooperating defendant’s
testimony to cases involving terrorism or
Mafia offenses and gives more emphasisto the quality of the cooperation than theoriginal law. Furthermore, it prohibits
such defendant from making statements
relevant to the facts covered in theproceedings where he has cooperated, tobodies other than those who are involvedin the immunity process, namely , thejudicial authority, the police forces, and his
3#306 Criminal Procedure Code (India); Witness
Security Benefit Act of 1991 (Italy); Witness andVictim Protection Law (Republic of Korea); #9 Rule
11 9 , 1 9 8 5 R u l e s o f C r i m i n a l P r o c e d u r e(Philippines). The same is true for Fiji, Nigeria,
Pakistan, Thailand, Uganda, and the USA.
4 See note 3 (Philippines).
5 #337-339, Criminal Procedure Code (Pakistan).

242

own defense counsel. Thus, while indetention, he is not allowed to engage inconversation with the police handling theinvestigation of the case, at least until therecord of the cooperation is drawn up, inorder to avoid any suspicion that his
testimony was contrived by theinvestigators. Neither is he allowed tomeet other cooperating defendants nor
receive or send mail outside, save forpurposes connected to protection needs. As
a consequence of his collaboration, he may
be spared from pre-trial detention or simply
placed on house arrest after judgment if
his contribution has been substantial orsignificant.6
But while the Italian government iseagerly awaiting the passage of this law
which would, in effect, allow theprosecutorial service to take full advantageof the immunity system, the Americans
have been successfully using it for decades.
The United States of America used to have“transactional immunity,” which gave total
immunity to the witness from prosecution
for an offense to which his testimony
specifically related. By 1970, however,these had been replaced by “useimmunity.”7 In essence, “use immunity”
only provides that a witness’ testimony will
not be used against him/her, but he/she
may still be prosecuted using otherevidence.8 The system ensures that thetestimony will not lead to the infliction of
criminal penalties on the witness.
To utilize “use immunity,” the testimony
or other information must be necessary to
the public interest and the witness musthave asserted or will likely assert his/herright against self-incrimination. The
6

Franco Roberti, UNAFEI lecture, 24 October 2000.
18 U.S.C., #6001-6005.
8 The same system is being used by Tanzania under
its Economic and Organized Crime Control Act of
1984, #53.
7

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
United States Attorney, with the approvalof the Attorney General or the designatedAttorney General, is the one who shallapply with the court for an order granting
use immunity.9
In addition to these codified immunity
systems, there are two other types of
immunity system which are not codified,namely, non-prosecution agreements andcooperation agreements. Non-prosecutionagreements, which are mainly used where
the involvement of a witness in a criminal
act is minimal, grant immunity fromprosecution in connection with that casein return for full and truthful cooperation,
but these are rarely used.
Cooperation agreements, on the other
hand, are utilized more frequently and areconsidered very valuable in the prosecutionof organized crime groups. In a cooperationagreement, the government agrees to filea motion which would, in effect, give a
judge the discretion to reduce the sentence
in exchange for the defendant’s complete
and truthful cooperation. And upon receipt
of such motion, the sentencing judge willusually reduce the penalty.10
D. Alternatives
Some countries have adopted systems
which do not squarely fall within theconcept of immunity discussed above.
China, for example, grants immunity or
mitigation of sentence to returning Chinese
nationals who have committed a crime
abroad for which they have already beenpunished.11 Germany used to have a law
on Principal Witness Regulations Against
Organizsed Crime, but this ceased to be
operative on 31 December 1999.12 Section

31 of the Narcotics Act, however, which has
been in force since 1981, has been
unusually successful in the detection oforganized narcotics crime.13
On the other hand, there is a way ofgetting the testimony of a person otherthan through immunity. Hong Kong’s
Organized and Serious Crimes Ordinanceof 1994 allows the Attorney General toapply to the High Court for a “witnessorder”, which compels a person to provide
information to the police or other officers
conducting an investigation of an organizedcrime. Defiance of such order is apunishable offense.
E. Assessment
There are many countries which have an
immunity system, sophisticated orotherwise, because it is internationallyrecognized as an effective measure incombating TOC. This prerogative,
however, must always be exercised withutmost caution. Others, like the US, havean advanced and evolving immunity
system, a fact that may be attributable totheir long experience with crime detection
and prevention, their need to reconcile
effective law enforcement and prosecution
with the individual’s right against selfincrimination, as well as on changes in theattitude of the general public toward crimeand punishment. It must be noted that, inrecent years, the trend in the USA has been
toward granting less immunity tocooperating criminal, for basically the same
arguments against immunity.
Some countries, however, do not havesuch a system. The reasons vary from one
State to another, based on one or more of
the following issues: (a) it violates the9

In 1999, 1,444 out of 2,059 requests for immunity
were granted by US courts.
10 Bruce G.Ohr, UNAFEI lecture, 24 October 2000,
citing Federal Sentencing Guideline § 5K1.1.
11 § 1, Article 10, Criminal Law.

12 A summary of the pertinent law is provided in

Annex B.
13 A summary of the provision is provided in Annex

C.

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RESOURCE MATERIAL SERIES No. 58
principle of equality and rule of law; (b) it
is incompatible with the principle ofmandatory prosecution; (c) it is prone toabuse by authorities; (d) it is detrimental
to the citizen’s confidence in the judiciaryand in the inviolability of the law; (e) it
breeds a negative public perception that
the State is dealing with criminals; (f) it
makes the defense more difficult; (g) it
makes the trial and prosecution depend on
the dubious statement of a criminal who
wishes to escape liability; (h) the danger ofbetrayal tends to unite rather than divide
crime groups14; and (i) in some countries,
there is a culture of justice where the people
cannot accept the exoneration of a criminalby testifying against his co-accused.15
Therefore, the absence or existence of an
immunity system depends as much on eachnation’s culture, history, and national
sentiment, as on their body of laws. Thisdifference, in turn, poses one of the main
obstacles in enforcing the immunity systemprovision of the Draft UN Convention
Against TOC, which would bind all States
Parties to consider the adoption of such asystem.
III. WITNESS AND VICTIMPROTECTION PROGRAMS
A. Scope Objectives
Keeping in mind the provisions of the
Draft UN Convention Against TOC,
specifically Articles 23-24,16 the passage of
which before the end of 2000 is very likely,
the nations of the world are thereby
encouraged to adopt measures which will
guarantee the protection of witnesses fromthreats, intimidation, corruption, or bodily
injury in relation to testimony given in a
14 Issues (a) to (h) are actually the reasons that led tothe collapse of the immunity system in Germany.
15 This seems to be the main reason why there is no

immunity system in Japan.
16 See Annex A for the full text of these three articles.

244

case involving TOC.
In order to get the cooperation of people
in the fight against TOC, they must be
assured that in doing so, their life orproperty, or that of their family’s, would besafe from the criminal organizations they
are challenging. Depending on the degreeof cooperation and the type of witness, thisprotection may be given before, during and/or after the judicial proceeding. A witness
may either be the accused who is granted
immunity, the victim, or a third party.
Even as the inquiry is done before thepolice, the public prosecutor, or the court,
protection must be considered as long as
there is a possibility that the suspect/accused or other individual aims to preventthe witness from testifying against said
suspect/accused or to force such witness tomake a false testimony, by threatening or
actually hurting the witness or any
member of his/her family.
Some countries have specific witness
protection programs, while others haveincorporated witness protection provisions
in their criminal or criminal procedurecodes. Either way, if adequate protection
can be given to witnesses, the law would
have served its purpose.
B. Modes of Protection
1. Witness and Victim Protection in
GeneralIn Brazil, the national programme forthe protection of victims and witnesses tookeffect in August 1999. The persons who
may benefit from this programme are those
without decreed imprisonment and theirrelatives who habitually live with them.
The programme includes the following
measures:(i)
Transferring the residence of thewitness;(ii) Monthly financial aid for each
witness;(iii) Supply of food and clothing;

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
(iv)
(v)

Police protection when traveling;
Helping the witness find a job in
the work market;(vi) Retention of benefits by a public
employee who is removed from theservice;(vii) Social, psychological and medical
assistance; and(viii) Change of identity.
Under the Criminal Procedure Law and
Police Law of Germany, there are witness
protection measures that can be taken inseveral steps depending on the gravity ofthe danger. The concurrent utilization ofseveral means is possible. The simplest
though no less effective measure, is byprotecting the address of the witness.
However, the best way to protect a witness
is by totally concealing his/her identity andperson.17
Hong Kong’s Witness Protection
Ordinance of 2000 assures the safety of
witnesses, specifically accomplices, andtheir families by allowing them to live insafehouses, omitting their address fromtheir statements, and giving them a new
identity after the trial. In addition, theHong Kong Police has set up a hotline
which may be used bay the public to report
the activities of criminal organizations in
the first instance. In such a case, theidentity of the reporter shall also beprotected.
The 1991 witness protection programmeof Italy covers cooperating defendants aswell as non-criminal witnesss. 18 In
implementing the programme, thefollowing are observed:(a) the personal safety of the cooperating
witness;(b) their psychological safety;(c) security of investigation; and17 Johan peter Wilhelm Hilger, NAFEI lecture, 17

October 2000.

(d) t h i r d - p a r t y p o s i t i o n i n t h emanagement of the collaboration,
which is essential to prevent an
instance where the police may
suggest the answer to the suspect(otherwise known as the principle ofseparation between protection andinvestigation agencies).
Where the statement are indispensable
for investigations on Mafia-type orterrorist-subversive
criminalorganizations, reinforced common
measures - such as temporary police
protection for the cooperating witness andhis family members - may be applied toensure the latter ’s safety. Financial
support is usually given, although theamount is not substantial.
Moreover, the witness may be exempt
from pre-trial custody if:(a) s/he has no current connections with
the Mafia or terrorist organization;(b) s/he complies with the conditions of
the programme; and(c) their cooperation is significant.
Witnesses who are, however, already incustody may be placed in appropriate andadequate correctional units. The law(Article 8, Law Dectree No. 52 of 1991) also
provides as incentive for the collaboration,a special extenuating circumstance, thatis, the reduction of the penalty by one-thirdin case of conviction.
The Republic of Korea enacted its
Witness and Victim protection Law on 31

18 The responsibility to protect a person and his family

members, as long as it is necessary and possible, isvested by the law in a range of bodies andauthorities, including the Chief Prosecutors or the
Head of the Police, the National Commission of the
Ministry of the Interior, and the National Protection
Service.

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RESOURCE MATERIAL SERIES No. 58
August 1999, which came into effect onJune 2000. The law covers not only thevictim or the witness, but also extends
protection to their families. If there is apossibility that a witness may be the targetof retaliatory action, his name may be kept
confidential and he may be given police
protection. When the witness or victim
sustains financial loss as a result of thecrime or the investigation, he may be
granted relief money for the loss suffered.
And in the event there is a need for such
witness to transfer his residence or secure
new employment, he may be furnishedsome assistance at government expense.
In Laos, during investigation of a case,the police may provide protection to awitness whose personal safety isthreatened. The investigation can be donein the office of the police investigator or theprosecutor, and the statement secured
during the investigation can be presented
and accepted as evidence at the court’s
discretion. The witness and victim
protection programme of Nigeria, which iscovered by regulations and not by any
specific provision in the Criminal Code, isaimed at protecting witnesses who fear for
their life or personal safety in the event
they agree to testify against the accused.
This programme includes keeping thename of the witness confidential.
I n t h e P h i l i p p i n e s , t h e Wi t n e s s
Protection, Security and Benefit Act19 wasenacted on 21 April 1991, with the
Department of Justice as the lead
implementing agency. As a result ofadmission into the Witness Protection and
Benefit Programme, which has asubstantial budgetary allocation, 20 thewitness shall enjoy the following benefits:

19 Republic Act No. 6981.
20 The latest available figure is 35,000,000, Philippine

currency, for the year 1996.

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(i)

Secure housing facility until he has
testified or until the threat,
intimidation or harassment
disappears or is reduced to a
manageable or tolerable level;(ii) Relocation, if the circumstances sowarrant;(iii) F i n a n c i a l a n d e m p l o y m e n t
assistance;(iv) Retention of employment benefits;(v) Travel expenses and subsistence
allowance during the inquiry;(vi) M e d i c a ltreatment,
hospitalization, and medication incase of injury;(vii) Burial benefits, in case of death
due to his participation in the
WPP; and(viii) Free education to children, fromprimary to college level in any
State or private school, college oruniversity, if the witness dies or
becomes permanently
incapacitated to work.
For its part, Section 52 of Tanzania’s
Economic and Organized Crime Control
Act of 1984 allows the Inspector-Generalof Police, on his own motion or after
consultation with the Director of Public
Prosecutions, to arrange for the securityof the witness or potential witness and, if
necessary, his/her family, where there isdanger or real possibility of threat or harm
to such witness or potential witness.
In the USA, the federal witness security
programme to aid the prosecution oforganized crime groups was created by the
Department of Justice in 1970. Because of
security concerns regarding the witness
and his/her family, the pending and actual
participation of such witness in the
programme shall not be disclosed except
under the authorization of the Office ofEnforcement Operation. This set-up gives
the United States Marshal Service time to
conduct preliminary interviews,

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
court to deny bail to the accused if
there is danger that he may goafter the witness. It bail isgranted, however, the judge may
set as conditions that the accusedmust not leave his home nor talkto any of the prosecution witnesses.
Moreover, he is placed under police
surveillance and is required toreport to court once a week. But
during the trial, there is no legal
mechanism for the protection of
witnesses, except police escort
during the hearings.

psychological testing and appropriate
review, thereby minimizing the disruption
to both the witness and the concerned
government agencies. Once admitted into
the programme, the witness and his/herfamily are given new identities, relocatedto another part of the US, and given
financial assistance until the witness isable to secure employment. The witness
security programme, although rarely usedand very costly, 21 has proven to be
extremely beneficial and effective in theprosecution of organized crime groups.
2. Court Systems for Witness and Victim
Protection
Japan has evolved a comprehensive
witness protection programme under its
Code of Criminal Procedure (CCP), which
was amended on 18 August 1999 and 19
May 2000. For the purpose of this paper,
the Japanese model will be utilized as apoint reference for the following discussion
on the various court systems adopted bydifferent countries to ensure the protectionof witness.
(i)

Denial of Bail
Under Section 96.1 (4) in relation
to Section 89 (5) of the CCP ofJapan, an accused may be denied
bail if there is reasonable groundto believe that he may threaten toor actually injure the body or
damage the property of a witness,whether such witness be the victim
or some other person who has
knowledge of the case, or a relativeof said witness. Likewise, in Papua
New Guinea, when the suspect ina serious crime is in custody, theprosecution may file a motion in(ii)

Attendants, Screen, and Video
Link
With the recent amendment ofJapan’s CCP, an attendant of thewitness may be allowed in thecourse of examination, and ascreen may be set up between thewitness and accused. One of theinnovations introduced is theallowance of video link
examination (to take effect inNovember 2001) where thewitness, being out of thecourtroom, answers the questionsof the public prosecutor or the
defense counsel who are in the
courtroom.22
Similarly, some countries haverules of procedure which allow
psychologist, social worker, publicprosecutor, or other person toaccompany a child victim undereighteen years of age during theinquiry and trial of the case, or theuse of audio-video equipment torecord the victim’s statement (asin the case of Thailand),23 or allow

21 Since the beginning of the programme, over 6,800

witnesses have been admitted, along with some
9,000 family members. The average cost is $75,000
per witness, per year, and $ 125,000 per family, peryear.

22 CCP, #157-2 to 157-4.
23 The 1999 amendment of Thailand’s Criminal

Procedure Code only applies to victims who arechildren under 18 years old.

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RESOURCE MATERIAL SERIES No. 58
during the examination of thewitness. This is the same practicein Laos and Pakistan, where an
accused may be ordered to leave
the courtroom when the witness is
testifying, whether in an ordinarycase or in a case involving TOC.

the use of screens when thewitness is a juvenile (as in the caseof Fiji). In practice, the samemodes of protection can beextended to witnesses in cases
involving TOC, such as the
trafficking of children.
By the same token, Italy’s Law No.
11 of 7 January 1998 provides thebases for allowing the use of audiovisual equipment (videoconference) to cover the depositionof cooperating witnesses whose
lives may be in serious danger asa result of, or in connection with, acase involving TOC. In Germany,
it is possible to interrogate thewitness in another place, theproceedings therein recorded onvideotape, and such tape brought
to court as evidence. The witness
need not be physically present incourt, as long as the questioning
is monitored via video link.
Article 164 of Pakistan’s Qanun-eShahadat allows any evidence
which may become available due
to modern devices. Thus, the court
can resort to video link evidence,
although such facility is not yet
available in Pakistan.
(iii) Isolation of the Witness
Under the CCP of Japan, tomaintain order in the court,24 orwhen the judge believes a witness
will be unable to fully testify due
to the presence of the accused25 orof spectators,26 the court may ordersuch accused or spectators towithdraw from the courtroom(iv)

Out-of-court Examination
Under certain circumstances,
Japan’s CCP also permits the court
to order the examination of awitness at any place other than the
court, 27 or on dates other thanthose fixed for public trial,28 even
before the first fixed trial date.29 In
the latter case, the accused/suspect
and the defense counsel may
attend the examination only when
the judge believes their presence
will not interfere with the criminal
investigation,30 and the statement
obtained thereby may-as an
exception to the hearsay rule-beadmitted in evidence during thetrial even without presenting thedeclarant.31
Similarly, the laws of India,
Malaysia, Nigeria, and Uganda
allow in-chamber trials to be
conducted if it is important to keep
the public away from theproceedings. 32 For its part, awitness in Pakistan may be
examined in his home by the court
itself, or by a commissioner
appointed by the court for that
purpose. The defense counsel canalso examine the witness, but the
court may stop him or his clientfrom asking questions which may

27 Id., #158.1.
24 CCP, #288.2; See also Court Organization Law, #28 Id., $281.

71-2.125 Ibid., #304-2.
26 Id., #202.

29 Id., #227.1

248

30 Id., #228.2
31 Id., #321.1(1).

116TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
cause fear or embarrassment to, or
threaten, the witness.33(v)

Non-Disclosure of Personal
Information About the Witness
In Japan, if there is danger thatthe witness might be injured or his/her property damaged, the court
may limit questions by which the
domicile or other personal
circumstances of the witness may
be known by the defendant.
During the disclosure of evidence,the prosecution may also request
the other party’s consideration inprotecting the security of some
witnesses.34 The same is true inPakistan, where it is theprosecution’s prerogative whether
to keep the address and name ofsuch witness confidential.

3. Criminalization of Certain Acts toProtect Witnesses
While China has no specific law on
witness and victim protection, Article 307
of its Criminal Law penalizes with animprisonment of not more than three years,or, in severe cases, three to seven years,
any person who (a) prevents with violence,
threat, bribe, and other methods, a witness
from testifying, or (b)instigates others tomake false testimony. Article 308, on theother hand, punishes with the same
penalty any person who resorts topersecution or retaliation against awitness. In Fiji, interfering with thewitness is punishable under Section 131,
Penal Code Cap.17. The offense carries a
penalty of imprisonment of two years. This
32 #237(2), Criminal Procedure Code of India; #7,

Criminal Procedure Code of Malaysia (Similar
provisions are reflected in #101, Subordinate Court
Act of 1998, and #15, Judicature Act of 1997);
Uganda’s Children State of 1996.
33 Criminal Procedure Code of 1898.
34 CCP, #295.2 and 299-2.

law, however, does not always protect awitness because it does not cover witnesses
identified at the investigation stage.
On the other hand, Section 105.2 of thePenal Code of Japan punishes any person
who intimidates a witness in connection
with such person’s or another person’s case.
Under Section 10 of the 1991 Witness
Protection, Security and Benefit Act of thePhilippines, accused persons discharged to
be State witness under Sections 9 and 10,
Rule 119 of the 1985 Rules of Criminal
Procedure may also avail of the benefits
under the witness protection programme.
Furthermore, Section 17 penalizes any
person who shall harass a witness andthereby hinder, delay, prevent, or dissuade
such witness from otherwise cooperatingwith the prosecution.
C. Assessment
The breadth and coverage of TOC
countermeasures differ from one State toanother. An effective witness protection
programme is just one of suchcountermeasures.
The Draft UN
Convention on TOC included witness
protection precisely because of thealarming growth of TOC worldwide. Thisis obviously a recognition of the fact that,
although some countries currently have noserious problems with TOC, this state ofaffairs may drastically worsen in view of
the rapid and continuing spread of TOC.
In other words, countries which have notyet felt the full impact of TOC might
eventually feel it in the near future.
It has been observed that many
countries do not have witness protection
programs that specifically apply to cases
involving TOC. A number of States,
however, have programs that are generally
used in ordinary crimes, programs that
may also be effective in fighting TOC, inaddition to legal provisions that do not form
part of any witness protection scheme.

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RESOURCE MATERIAL SERIES No. 58
This does not mean that all countries
should adopt a uniform plan for witness
protection. For one, as suggested earlier,different countries are not similarly
situated as far as their exposure to TOC isconcerned. There is also a divergence ofexperience in witness protection, especiallywith regard to TOC. For example,
Germany has a sophisticated programme
for giving a witness a new identity, but thisfacility is rarely used because their TOC
problem is not serious enough to warrant
the use of such a programme. Secondly,
the details of each programme may varyfor each country, depending on the peculiar
circumstances present in their jurisdiction.
Some countries, for instance, do not haveadequate programs, or may have them but
are not using them wisely. One of thereasons is financial. With inadequate
funds, it may be difficult to devise a witness
protection programme, or even to
implement it. The other reason is that itis difficult to define the scope of witness
protection. Should the protection be limited
to the witness, or should it include hisfamily, and if so, to what degree? Should
the witness and/or his family receive
protection or assistance only during thetime of trial, or should it continue
indefinitely as long as the threat exists?
How much should financial assistance be?
Unfortunately, there is no available datathat would answer these questions. Somecountries, on the other hand, haverelatively new programs, so their efficacy
cannot yet be gauged. Because each legal
system is distinct from one another, thesetting of standards for witness protection
will inevitably have to made on a countryto-country basis.
IV. CONCLUSION
The battle against transnationalorganized crime is fought in two major
arenas. One is in the field of law
enforcement, the other in a court of law.

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To secure a victory, the system of justicemust succeed in both. An element common
to these two is evidence. Without sufficientmaterial proof, no indictment will everprosper. A key factor in evidence gathering
is finding witnesses who have adequate
information regarding a crime which isunder investigation or one which is about
to be committed. It makes no difference
whether the witness be the victim, or adisinterested third party, or even an
accomplice. If their testimony will lead toan arrest or a conviction, they must be
persuaded to come to court and testify
against a member of a TOC group. Since
the most common reason why witnesses
will refuse to testify is that their life orlimb, or that of their families, may beplaced in peril if they divulge what theyknow, their cooperation can be gained byoffering them protection and other benefits,or, in the case of co-defendants, by granting
them immunity from prosecution or a
mitigation of sentence.
These strategies are strongly endorsedby the United Nations. Upon passage of
the UN Convention on TOC before the endof this year, States Parties may have todevise feasible immunity programs, adopt
legislation specially designed for theprotection of witness and victims, orotherwise enhance existing systems so thatthey will conform to international
standards and best practices. Intercountry cooperation in this regard will be
more attainable if the necessary domestic
laws are already in place.