FOURTH REGIONAL SEMINAR ON GOOD
GOVERNANCE FOR SOUTHEAST ASIAN COUNTRIESSECURING PROTECTION AND
COOPERATION OF WITNESSES AND
WHISTLE-BLOWERS
Co-hosted by UNAFEI
and the Department of Justice of the Republic of the Philippines
6-9 December 2010, Manila, the Philippines

November 2011
TOKYO, JAPANThe views expressed in this publication are those of the respective presenters and authors only, and do
not necessarily reﬂect the views or policies of UNAFEI, the Department of Justice of the Philippines,
or other organizations to which those persons belong.

INDEX
SECURING PROTECTION AND COOPERATION OF WITNESSES AND
WHISTLE-BLOWERS
Foreword
Introduction
Opening Remarks by The Honourable Mr. Francisco F. Baraan III, Undersecretary of Justice,
Republic of the Philippines
Introductory Remarks by Mr. Haruhiko Ukawa, Deputy Director, UNAFEI
Presentation by Mr. Severino H. Gaña Jr., Senior Deputy State Prosecutor,
Department of Justice, Republic of the Philippinesiiii

Papers and Contributions
VE Ms. Karen Kramer
VE Ms. Anne Katharina Zimmermann
Adviser Mr. Robert E. Courtney III
Philippines, DOJ
Philippines, Senate Committee on JusticeCambodia
Indonesia
Lao PDR
Malaysia
MyanmarThailand
Vietnam

1
3
20
36
49
54
63
68
76
81
87
92
98

Discussions and Recommendations
Summary of Discussions
Recommendations

103
105
107

List of Participants, VEs and Organizers

109

Seminar Schedule

113

Appendix
Photographs

115
116

v
vi
xi

FOREWORD
It is my great pleasure and privilege to present this report of the Fourth Regional Seminar on Good
Governance for Southeast Asian Countries, which was held in Manila from 7 – 9 December 2010. This was
the second time to hold a Good Governance Seminar in Manila and it was a pleasure to visit the capital cityof the Philippines once again, and to experience the wonderful hospitality and friendliness of our Philippine
hosts, friends and colleagues.
The main theme of the Seminar was “Securing Protection and Cooperation of Witnesses and Whistleblowers” and it was attended by 22 criminal justice practitioners from Cambodia, Indonesia, Lao PDR,
Malaysia, Myanmar, the Philippines, Thailand and Vietnam. The Seminar was co-organized by UNAFEI andthe Department of Justice of the Republic of the Philippines.
Witnesses and whistle-blowers play a significant role in the criminal justice process, and how toprotect them and secure their cooperation is a shared concern among law enforcement authorities all over theworld. This shared concern is reflected in various articles of the United Nations Convention against
Transnational Organized Crime and its Protocols, and the United Nations Convention against Corruption. To
actually implement the measures provided by those conventions and achieve success, it is indispensable todevelop each country’s criminal justice practitioners’ knowledge and expertise of how to effectively protect
witnesses and whistle-blowers and obtain their cooperation. The purpose of this Seminar was to become
familiar with the current situation of this global issue: how to secure protection and cooperation of witnesses
and whistle-blowers, and to broaden knowledge thereof.
Owing to the very well prepared and informative presentations and contributions given by theparticipants and Visiting Experts, and the lively discussions of the issues raised therein, the three-day Seminarconcluded with all attendees’ improved knowledge of this important issue and its particular situation inSoutheast Asian countries. Information on beneficial practices employed by international colleagues anduseful international methods of addressing the protection of witnesses and whistle-blowers were shared andexchanged.
On the basis of the foregoing, the participants could agree upon and adopt a series of practice-oriented
recommendations as the ﬁnal document of this Seminar. As Director of UNAFEI, I genuinely hope that theserecommendations will contribute signiﬁcantly to enhancing cooperation among Southeast Asian countries toﬁght against organized and economic crime, including corruption.
It is my pleasure to publish the recommendations, and this Report of the Seminar, as part of UNAFEI’s
mission, entrusted to it by the United Nations, to widely disseminate meaningful information on criminal
policy.
Finally, I would like to express my sincere and deep appreciation, on behalf of UNAFEI, to the coorganizer, the Department of Justice of the Republic of the Philippines, for its enormous contribution inconvening the Fourth Regional Seminar. Without its members’ expertise, professionalism and tireless efforts,
this meeting could not have been such a success.

Tatsuya Sakuma
Director, UNAFEI
November 2011

― i ―INTRODUCTION

Opening Remarks by
The Honourable Francisco F. Baraan III
Undersecretary, Department of Justice,
Republic of the Philippines***

Introductory Remarks by
Mr. Haruhiko Ukawa
Deputy Director, UNAFEI***

Presentation by
Mr. Severino H. Gaña
Senior Deputy State Prosecutor,
Department of Justice,
Republic of the Philippines― iii ―

OPENING REMARKSThe Honourable Francisco F. Baraan III
Undersecretary, Department of JusticeRepublic of the Philippines
His Excellency, the Ambassador of Japan, Mr. Makoto Katsura; Director of UNAFEI, Mr. Masaki
Sasaki; our visiting experts; the participants of this seminar from the Southeast Asian countries of Cambodia,
Indonesia, Lao PDR, Malaysia, Myanmar, Thailand and Vietnam.
My dear participants of this three-day seminar: On behalf of the Department of Justice, the sponsor ofthis seminar, I welcome all the participants, especially our foreign guests, to our country – the Philippines. I
also extend a welcome from the Secretary of Justice, Secretary Leila M. De Lima, who is now in Washington
D.C., attending an international conference on corruption that requires the attendance of many secretaries ofjustice from all over the world.
Why do some crimes go unpunished? Why do criminals just go on their merry way? The big names
and the big ﬁsh, the high and the mighty, they are all almost visual. It is because they have all the means tobribe, the means to hide, the means to protect themselves; but more than that, they have the means and the
motive to harass and intimidate witnesses and even kill witnesses and whistle-blowers. And in the Philippines,
kill they will. A living example would be the Maguindanao massacre. Many witnesses were silenced and thekillers realized that they have cultured a prevalent impunity. This is not only the case in the Philippines but inmost Southeast Asian countries. So, this seminar comes at a very opportune time when the President, during
his State of the Nation Address, mentioned the strengthening of the Witness Protection Program as well as theprimary programmes of the new administration under his presidency. Indeed, the administration of justicewill fail unless we come up with a strong, effective programme to protect and to secure witnesses and whistleblowers. In the Philippines, for example, we have many laws intended to protect whistle-blowers. In fact, wehave the Witness Protection and Security Beneﬁt Program which was passed as early as 1991. And then we
have some pending bills in the Senate: one of them, the bill of Senator Miriam Defensor-Santiago, establishes
a whistle-blower bill of rights, and we have the same provisions in the impeachment proceedings in the Houseof Representatives. We have likewise the same provision in our Anti-Trafﬁcking in Persons Act of 2003. Also,in our National Drug Law Enforcement and Prevention Coordinating Center, we also have this provision toprotect and secure whistle-blowers and witnesses. In a very recent resolution passed by the Supreme Court,
the rule of the Writ of Amparo, includes provisions for the protection and security of whistle-blowers – it is
one of the important features of the Writ of Amparo. And even our many offices and agencies in thegovernment, like the Bureau of Corrections, the Office of the Ombudsman and the Department of Social
Welfare and Development, in cases of administrative proceedings, all have almost similar provisions toprotect and secure whistle-blowers. And as it happens, the Philippines has good initiatives and good laws, but
bad implementation - almost always. So, this is a challenge to all the participants in this seminar: that we
come up with solutions to protect and secure whistle-blowers and to send the message to criminals thatsilencing a witness or a whistle-blower is no longer an option. Thank you very much and good day!

― v ―INTRODUCTORY REMARKS
Haruhiko Ukawa
Deputy Director, UNAFEI
It is my pleasure to open the discussions at the Fourth Regional Seminar on Good Governance forSoutheast Asian Countries. This year’s seminar topic, “Securing Protection and Cooperation of Witnesses andWhistle-Blowers”, has two components to its subject matter: measures to secure protection, and measures tosecure cooperation. The topic also mentions two groups of people as covered by these measures: witnesses
and whistle-blowers.
As an introduction to the seminar, I will ﬁrst provide a quick overview of the topic, and then proceed
to explain the relevant laws and practices in Japan.

I. SECURING PROTECTION OF WITNESSES
Criminal justice systems rely upon witnesses to provide information and testimony necessary todetect, investigate, and prosecute criminal activity, and to convict those who are responsible for it. The abilityof witnesses to fully cooperate and testify without fear is, therefore, a prerequisite for the systems to function
properly and achieve their intended goals.
This is particularly true in the investigation and prosecution of organized crime and terrorist groups,
for witness intimidation and retaliation are prevalent elements of their modus operandi. The same can be said
about large-scale corruption. Corrupt leaders of government, bribe-taking officials, and successful
businesspersons involved in the scheme, all of them powerful ﬁgures, will take advantage of whatever means
are at their disposal to discourage witnesses from coming forward and cooperating with the authorities.
Against such a backdrop, Article 24 of the United Nations Convention against Transnational
Organized Crime (UNTOC) and Article 32 of the United Nations Convention against Corruption (UNCAC)
mandate States Parties to take appropriate measures to provide effective protection to witnesses. The relevant
provisions are almost identical, and Article 32, paragraph 1 of the UNCAC reads as follows:
Each State Party shall take appropriate measures in accordance with its domestic legal system andwithin its means to provide effective protection from potential retaliation or intimidation for witnesses
and experts who give testimony concerning offences established in accordance with this Convention
and, as appropriate, for their relatives and other persons close to them.
Witness protection in the broad sense includes the following:(1) witness assistance and support;1(2) police protection;(3) procedural protection2 and;(4) witness protection programmes.3
We invited Ms Karen Kramer, a Senior Expert at the United Nations Ofﬁce on Drugs and Crime, tospeak to you about witness protection generally. She will provide you with an excellent overview including
1 “Witness assistance and support” refers to measures designed to reduce the psychological burden of witnesses and to avoid secondary
victimization.
2 “Procedural protection” refers to procedural measures designed to allow witnesses to testify free of intimidation and fear.
3 “Witness protection programme” refers to a formally established programme that provides for the relocation and change of identity of
the witness.

― vi ―

the background, objectives, and key features of witness protection programmes.

II. SECURING COOPERATION FROM WITNESSES
One important fact of life, known to all investigators and prosecutors, is that evidence that mostpersuasively and effectively establishes criminality often comes from tainted sources.
As criminals know much more about criminal activities and conspiracies than law-abiding citizens do,accomplice testimony plays a vital role in investigation and prosecution of organized crime and corruption.
When the target of investigation and prosecution is the leader or his or her close associate within the group,
testimony from accomplices and insiders is not just useful: it may be the only means available to connect themost culpable to criminal activity that can be proven in a court of law.
In order to encourage and facilitate the cooperation of such people, a number of countries allow
authorities to offer leniency or immunity in exchange for cooperation, information, and truthful testimony.
There is a growing recognition of the effectiveness and usefulness of such practices, which is reﬂected in
Article 26, paragraph 1-3 of UNTOC and Article 37, paragraph 1-3 of UNCAC. They are similarly phrased,
and the latter reads in relevant part as follows:
1. Each State Party shall take appropriate measures to encourage persons who participate or who haveparticipated in the commission of an offence … to supply information useful to competentauthorities for investigative and evidentiary purposes…;
2. Each State Party shall consider providing for the possibility, in appropriate cases, of mitigating
punishment of an accused person who provides substantial cooperation in the investigation orprosecution of an offence …;
3. Each State Party shall consider providing for the possibility, in accordance with fundamental
principles of its domestic law, of granting immunity from prosecution to a person who provides
substantial cooperation in the investigation or prosecution of an offence….
In some countries, notably the United States, plea bargaining and cooperation plea agreements
between prosecutors and witnesses/defendants are widely utilized. You will hear from Mr. Courtney, a UnitedStates Department of Justice attaché to the U.S. Embassy in Manila, how cooperation plea agreements operate
in the United States.
In other countries, including Japan, such practices are still controversial. You will hear from Ms.
Zimmermann, a Legal Desk Ofﬁcer working for the German Federal Ministry of Justice, about the policy
discussions that took place in Germany on the subject, and how they were incorporated into a recent law
change regarding Germany’s so-called crown witness system.
One thing to bear in mind: while witnesses cooperating under promises of leniency are one of themain categories of participants in witness protection programmes, a fundamental difference between the two
measures should not be overlooked. Leniency is offered in exchange for the witness’s cooperation, but
protection is not: it simply removes obstacles to full cooperation, and it should not be seen as a reward.

III. WHISTLE-BLOWER PROTECTION“Whistle-blower” is not a precisely deﬁned legal term. The UNCAC does not use the term. Instead, it
refers to “any person who reports in good faith and on reasonable grounds to the competent authorities any― vii ―

facts concerning offences established in accordance with the Convention (Article 33).”
Whistle-blowers do not necessarily become witnesses, but they play an important role of alerting theauthorities to wrongful acts that would have otherwise remained unnoticed. For that reason, the UNCAC
requires States Parties to “consider” incorporating appropriate measures to protect reporting persons fromunjustiﬁed treatment.

IV. JAPANESE LAWS AND PRACTICES
A. Witness Protection in General
Regular police and other criminal justice authorities, notably the public prosecutors ofﬁce, provide
witness protection in Japan. There is no specialized agency responsible for the matter. Police protection isprovided on a case-by-case basis and may be enhanced in accordance with the risk involved.
B. Witness Assistance and Support
Various forms of witness assistance and support – measures designed to reduce psychological burdens
and avoid secondary victimization of witnesses – are provided especially for victim-witnesses, by both thepolice and public prosecutors ofﬁces.
The first step in the provision of assistance is to inform the witness of the details of the criminal
procedure and to explain what to expect during the investigation and upcoming trials. In order to facilitate theunderstanding of the process, the public prosecutors ofﬁce has prepared a 54-page easy-to-read colour booklet
entitled FOR VICTIMS OF CRIME.4 Other assistance given by the prosecutors office includes accompanying
witnesses to courthouses and introducing other organizations that can provide services, such as psychologicaland ﬁnancial support, not within the competency of the prosecutors ofﬁces
C. Procedural Protection
The Japanese Code of Criminal Procedure and court rules provide for a wide variety of procedural
measures designed to ensure that witnesses testify free of intimidation and fear:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

Limiting disclosure of a witness’s personal information;
Presence of accompanying persons for psychological support;
Shielding of witnesses;
Testimony via videoconferencing;
Removal of defendant from courtroom;
Removal of spectators from courtroom;
Use of pretrial statements.

As these measures affect the defendant’s right to fair and public trial and the right to confront
witnesses, a careful balancing between competing interests – witness protection and the defendant ’s
procedural rights – is essential. In Japanese law, such a balancing is reﬂected in the measures available andthe conditions under which they may be applied.
1. Limiting Disclosure of a Witness’s Personal Information
During preparation for trial and as part of pretrial discovery, prosecutors are required to notify the
defence counsel of the names and addresses of their witnesses. Likewise, the prosecutor’s evidence, which
may contain personal information of witnesses, will be disclosed. While such information cannot be
suppressed entirely, the Code allows for the possibility to delay or set appropriate conditions on the disclosurein order to protect the witnesses.
4 The contents of the booklet (English version) can be accessed at the following link: http://www.moj.go.jp/ENGLISH/CRAB/crab-02.html― viii ―2. Presence of Accompanying Persons for Psychological Support
The court, after hearing the opinions of the prosecutor and of the defendant or his/her counsel, may
allow any witness to be accompanied by an appropriate person during the testimony if the witness is likely tofeel extreme anxiety or tension. Accompanying persons are usually a family member, a psychologicalcounsellor, or a police ofﬁcer who has been providing assistance from an early stage in the investigation. The
role of the accompanying person is to quietly sit by and provide mental support, and they are prohibited fromdisturbing the examination of witnesses or taking action that may unduly inﬂuence the testimony.
3. Shielding of Witnesses
The court, after hearing the opinions of the prosecutor and of the defendant or his or her counsel, may
order that the witness be shielded from the defendant and/or from the spectators. Shielding can avoid stressful
face-to-face confrontation with the defendant and help protect the witness’s identity. In practice, shielding isdone by setting up a screen.
There are two types of shielding: shielding from the defendant and from the spectators. As the former
affects the defendant’s right of confrontation, it is only available when the defence counsel is present in court.
The screen will be set up in such a way that the counsel can still see the witness and observe his or her
demeanour.
4. Testimony via Videoconferencing
Article 24, paragraph 2(b) of the UNTOC and Article 32, paragraph 2(b) of the UNCAC mention rulesof evidence that allow testimony to be given through video link or other communication technology. The
courts in Japan, after hearing the opinions of the prosecutor and of the defendant or his or her counsel, mayplace the witness in a different room and have him or her testify via simultaneous two-way video and audio
transmissions. This option is available for (1) victim-witnesses of certain sex crimes and (2) witnesses who
may feel pressure and have their peace of mind seriously harmed, if examined under ordinary procedure.
Accompanying persons, shielding, and videoconference technology may be used together.
5. Removal of the Defendant from the Courtroom
When the presence of the defendant creates pressure and makes the witness unable to testify fully, uponhearing the opinion the prosecutor and the defence counsel, the court may temporarily remove the defendantfrom the courtroom. In order to protect the rights of the defendant, this procedure is available only when the
defence counsel is present, and after the testimony, the court is required to call the defendant back, inform him
or her of the content of the testimony, and grant an opportunity to place further questions to the witness.
6. Removal of Spectators
When the presence of a particular person makes the witness unable to testify fully, the court may
exclude that person from the courtroom. As this does not directly affect the defendant’s procedural rights, therequirements and conditions are less strict than those that apply to removal of defendants.
7. Use of Pretrial Statements
Under the Japanese Code of Criminal Procedure, hearsay (pretrial statements of witnesses are hearsay)
is generally inadmissible. However the Code recognizes several exceptions, and statements taken by a publicprosecutor and signed by the witness are admissible if one of the following conditions are met:
(1)
(2)

the witness is unavailable to testify at trial; or
the witness takes the stand, gives different testimony, and the prior statement before a prosecutor
is considered more trustworthy.

While these hearsay exceptions do not directly protect the witnesses, they indirectly do so by
discouraging criminals from attempting to kill, harm, or otherwise threaten witnesses, in the hope of making
them unavailable or inﬂuencing their testimony.5
5 Note that witness tampering usually justiﬁes a ﬁnding that the pretrial statement is more trustworthy than the trial testimony.

― ix ―

8. Some Statistics
The following table shows the number of witnesses for whom procedural protection measures havebeen applied (source: Supreme Court of Japan). There has been a steady growth in their usage since theirintroduction in 2000. They are not just potential measures on the statute books but are a real and utilized partof Japan’s current criminal practice.M
Accompanying
Persons
Shielding
Testimony via
Video-link

2000

2001

2002

2003

2004

2005

2006

2007

2008

Total

10

38

68

51

87

68

77

70

86

555

104

847

912

1,062

1,074

1,103

1,233

1,222

1,007

8,564

–

67

122

136

217

210

234

224

202

1,412

D. Witness Protection Programmes
Currently, there is no formally established covert programme that provides for relocation and changeof identity of witnesses.
E. Measures to Secure Cooperation from Witnesses
Persons who testify truthfully against their accomplices usually have already made truthful admissionsof their wrongdoing and have accepted responsibility for it. Naturally, these admissions will be reﬂected in theprosecutor’s charging decision and sentencing recommendations as well as the sentencing decision by the court.
Beyond that, however, Japan is a “Land without Plea-bargaining.” There is no immunity statute orcrown witness system, either. Despite some powerful arguments in favour of introducing such measures, they
have been controversial and have not materialized so far.
F. Whistle-blower Protection
The Whistleblower Protection Act was enacted in 2004. The Act protects persons reporting certain
prescribed wrongdoing (called “Reportable Facts”) from unjustiﬁed dismissal and disadvantageous treatment
such as demotion and salary cuts.
Reportable Facts include criminal conduct and statutory violations relating to protection of life, body,or property, consumer interest, environmental preservation, and ensuring fair competition. The scope of theact is not limited to wrongdoing within government but extends to whistle-blowing within the private sector.
Although the Act is not without its critics – for example, it is often pointed out that violation of tax
laws and election laws are not included in Reportable Facts – it is expected to promote compliance with law
generally, and to contribute to the prevention and detection of various forms of wrongdoing.

V. CONCLUSION
While the need to protect witnesses is universal, how best to achieve it differs from country to country.
It has to be determined in accordance with each country’s legal tradition, society and culture, available
resources, levels and types of criminality, and frequency of violence against witnesses. For that purpose,
learning from other countries’ experiences and looking into emerging international standards and goodpractices should be particularly useful. This Seminar is intended as an opportunity to share experiences andexchange ideas, and I hope it will contribute to developing a common understanding on this important subjectof witness protection.

― x ―SECURING PROTECTION AND COOPERATION OF WITNESSESAND WHISTLE-BLOWERS
Severino H. Gaña, Jr.
Senior Deputy State Prosecutor
Department of Justice
Philippines
I. SECURING PROTECTION AND COOPERATION OF WITNESSES AND
WHISTLE-BLOWERS
A witness is a crucial support in the dispensation of justice in any civilized society. Nowadays we heara lot of squabbles about unceremonious dismissals or acquittals in sensational criminal cases. One of thereasons for this acquittal is the lack of or recantation/desistance of witnesses.
A witness happens to be the eyes and ears of the Court. The information provided by victims andwitnesses aids in the identification and arrest of the suspect. The role of witnesses and the evidence they
provide in criminal proceedings is crucial in prosecuting and securing the conviction of offenders.
Conversely, a person witnessing a crime usually experienced trauma. During the course ofinvestigation the witness may suffer harassment and threats from the accused. He or his relatives and loved
ones are open to the risk of being threatened, abducted, maimed or even bribed. For all these reasons, a person
is reluctant in becoming a witness.
The Philippines has taken appropriate measures to provide effective protection from potential
retaliation or intimidation of witnesses in criminal proceedings. Republic Act No. 6981 or “The Witness
Protection Security and Beneﬁt Act” was enacted on 24 April 1991, to encourage a person who has witnessedor has knowledge of the commission of a crime to testify before a court or quasi-judicial body, or before an
investigating authority, by protecting him from reprisals and from economic dislocation.
II. RATIONALE FOR THE ENACTMENT OF THE LAW
Witnesses for fear of reprisal and economic dislocation usually refuse to appear and testify in theinvestigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases
have been dismissed for insufﬁciency and/or lack of evidence. For a more effective administration of criminal
justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and beneﬁts
to ensure their appearance in investigative bodies/courts.
III. SALIENT FEATURES OF R.A. 6981
THE WITNESS PROTECTION SECURITY AND BENEFIT ACT
A. Section 2. Implementation of Program
The Department of Justice (DOJ), through the Secretary, formulates and implements the Witness
Protection, Security and Beneﬁt Program. The Department may call upon any department, bureau, ofﬁce or
any other executive agency to assist in the implementation of the Program and the latter ofﬁces shall be underlegal duty and obligation to render such assistance.

― xi ―

B. Section 3. Admission into the Program
Any person who has witnessed or has knowledge or information on the commission of a crime andhas testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any
investigating authority, may be admitted into the Program:
Provided, That:a) the offense in which his testimony will be used is a grave felony as defined under the Revised
Penal Code, or its equivalent under special laws;b) his testimony can be substantially corroborated in its material points;c) he or any member of his family within the second civil degree of consanguinity or affinity is
subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively,
because or on account of his testimony; andd) he is not a law enforcement officer, even if he would be testifying against the other law
enforcement officers. In such a case, only the immediate members of his family may avail
themselves of the protection provided for under this Act.
If the Department, after examination of said applicant and other relevant facts, is convinced that therequirements of this Act and its implementing rules and regulations have been complied with, it shall admit
said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge orinformation on the commission of the crime, and thereafter issue the proper certiﬁcation. For purposes of thisAct, any such person admitted to the Program shall be known as the Witness.
C. Section 4. Witness in Legislative Investigations
In case of legislative investigations in aid of legislation, a witness, with his express consent, may be
admitted into the Program upon the recommendation of the legislative committee where his testimony isneeded when in its judgment there is pressing necessity therefor: Provided, That such recommendation isapproved by the President of the Senate or the Speaker of the House of Representatives, as the case may be.
D. Section 5. Memorandum of Agreement with the Person to be Protected
Before a person is provided protection under this Act, he shall first execute a memorandum ofagreement which shall set forth his responsibilities including:a) to testify before and provide information to all appropriate law enforcement ofﬁcials concerning all
appropriate proceedings in connection with or arising from the activities involved in the offense
charged;b) to avoid the commission of the crime;c) to take all necessary precautions to avoid detection by others of the facts concerning the protection
provided him under this Act;d) to comply with legal obligations and civil judgments against him;e) to cooperate with respect to all reasonable requests of ofﬁcers and employees of the Government
who are providing protection under this Act; and― xii ―

f) to regularly inform the appropriate program ofﬁcial of his current activities and address.
E. Section 6. Breach of the Memorandum of Agreement
Substantial breach of the memorandum of agreement shall be a ground for the termination of theprotection provided under this Act: Provided, however, That before terminating such protection, the Secretaryof Justice shall send notice to the person involved of the termination of the protection provided under this Act,stating therein the reason for such termination.
F. Section 7. Confidentiality of Proceedings
All proceedings involving application for admission into the Program and the action taken thereon
shall be conﬁdential in nature. No information or documents given or submitted in support thereof shall be
released except upon written order of the Department or the proper court.
Any person who violates the conﬁdentiality of said proceedings shall upon conviction be punishedwith imprisonment of not less than one (1) year but not more than six (6) years and deprivation of the right tohold a public ofﬁce or employment for a period of ﬁve (5) years.
G. Section 8. Rights and Benefits
The witness shall have the following rights and beneﬁts:(a)To have a secure housing facility until he has testified or until the threat, intimidation orharassment disappears or is reduced to a manageable or tolerable level. When the circumstances
warrant, the Witness shall be entitled to relocation and/or change of personal identity at theexpense of the Program. This right may be extended to any member of the family of the Witness
within the second civil degree of consanguinity or afﬁnity.

(b)

The Department shall, whenever practicable, assist the Witness in obtaining a means of
livelihood. The Witness relocated pursuant to this Act shall be entitled to a ﬁnancial assistancefrom the Program for his support and that of his family in such amount and for such duration as
the Department shall determine.

(c)

In no case shall the Witness be removed from or demoted in work because or on account of hisabsences due to his attendance before any judicial or quasi-judicial body or investigating
authority, including legislative investigations in aid of legislation, in going thereto and in coming
therefrom: Provided, That his employer is notified through a certification issued by the
Department, within a period of thirty (30) days from the date when the Witness last reported forwork: Provided, further, That in the case of prolonged transfer or permanent relocation, theemployer shall have the option to remove the Witness from employment after securing clearance
from the Department upon the recommendation of the Department of Labor and Employment.
Any Witness who failed to report for work because of witness duty shall be paid his equivalentsalaries or wages corresponding to the number of days of absence occasioned by the Program.
For purposes of this Act, any fraction of a day shall constitute a full day salary or wage. This
provision shall be applicable to both government and private employees.

(d)

To be provided with reasonable travelling expenses and subsistence allowance by the Program insuch amount as the Department may determine for his attendance in the court, body or authority
where his testimony is required, as well as conferences and interviews with prosecutors orinvestigating ofﬁcers.

(e)

To be provided with free medical treatment, hospitalization and medicines for any injury orillness incurred or suffered by him because of witness duty in any private or public hospital,― xiii ―clinic, or at any such institution at the expense of the Program.
(f)

If a Witness is killed, because of his participation in the Program, his heirs shall be entitled to aburial beneﬁt of not less than Ten thousand pesos (P10,000.00) from the Program exclusive of
any other similar beneﬁts he may be entitled to under other existing laws.

(g)

In case of death or permanent incapacity, his minor or dependent children shall be entitled tofree education, from primary to college level in any state, or private school, college or university
as may be determined by the Department, as long as they shall have qualiﬁed thereto.

H. Section 9. Speedy Hearing or Trial
In any case where a Witness admitted into the Program shall testify, the judicial or quasi-judicial body,or investigating authority shall assure a speedy hearing or trial and shall endeavor to ﬁnish said proceeding
within three (3) months from the ﬁling of the case.
I. Section 10. State Witness
Any person who has participated in the commission of a crime and desires to be a witness for theState, can apply and, if qualiﬁed as determined in this Act and by the Department, shall be admitted into theProgram whenever the following circumstances are present:(a)the offense in which his testimony will be used is a grave felony as deﬁned under the Revised
Penal Code or its equivalent under special laws;(b)

there is absolute necessity for his testimony;(c)there is no other direct evidence available for the proper prosecution of the offense committed:(d)his testimony can be substantially corroborated on its material points;(e)he does not appear to be most guilty; and(f)he has not at any time been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be
a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition
be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shallprevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Revised
Rules of Court.
J. Section 11. Sworn Statement
Before any person is admitted into the Program he shall execute a sworn statement describing in detailthe manner in which the offense was committed and his participation therein. If after said examination of said
person, his sworn statement and other relevant facts, the Department is satisﬁed that the requirements, it may
admit such person into the Program and issue the corresponding certiﬁcation.
If his application for admission is denied, said sworn statement and any other testimony given insupport of said application shall not be admissible in evidence, except for impeachment purposes.
K. Section 12. Effect of Admission of a State Witness into the Program
The certiﬁcation of admission into the Program by the Department shall be given full faith and creditby the provincial or city prosecutor who is required not to include the Witness in the criminal complaint or
information and if included therein, to petition the court for his discharge in order that he can utilized as a

― xiv ―

State Witness. The Court shall order the discharge and exclusion of the said accused from the information.
Admission into the Program shall entitle such State Witness to immunity from criminal prosecution
for the offense or offenses in which his testimony will be given or used and all the rights and benefits
provided under Section 8 hereof.
L. Section 13. Failure or Refusal of the Witness to Testify
Any Witness registered in the Program who fails or refuses to testify or to continue to testify without
just cause when lawfully obliged to do so, shall be prosecuted for contempt. If he testiﬁes falsely or evasively,
he shall be liable to prosecution for perjury. If a State Witness fails or refuses to testify, or testiﬁes falsely or
evasively, or violates any condition accompanying such immunity without just cause, as determined in ahearing by the proper court, his immunity shall be removed and he shall be subject to contempt or criminal
prosecution. Moreover, the enjoyment of all rights and beneﬁts under this Act shall be deemed terminated.
The Witness may, however, purge himself of the contumacious acts by testifying at any appropriate
stage of the proceedings.
M. Section 14. Compelled Testimony
Any Witness admitted into the Program cannot refuse to testify or give evidence or produce books,
documents, records or writings necessary for the prosecution of the offense or offenses for which he has been
admitted into the Program on the ground of the constitutional right against self-incrimination but he shallenjoy immunity from criminal prosecution and cannot be subjected to any penalty or forfeiture for any
transaction, matter or thing concerning his compelled testimony or books, documents, records and writings
produced.
In case of refusal of said Witness to testify or give evidence or produce books, documents, records, or
writings, on the ground of the right against self-incrimination, and the state prosecutor or investigator believes
that such evidence is absolutely necessary for a successful prosecution of the offense or offenses charged orunder investigation, he, with the prior approval of the department, shall ﬁle a petition with the appropriate
court for the issuance of an order requiring said Witness to testify, give evidence or produce the books,
documents, records, and writings described, and the court shall issue the proper order.
The court, upon motion of the state prosecutor or investigator, shall order the arrest and detention of
the Witness in any jail contiguous to the place of trial or investigation until such time that the Witness iswilling to give such testimony or produce such documentary evidence.
N. Section 15. Perjury or Contempt
No Witness shall be exempt from prosecution for perjury or contempt committed while giving
testimony or producing evidence under compulsion pursuant to this Act. The penalty next higher in degree
shall be imposed in case of conviction for perjury. The procedure prescribed under Rule 71 of the Rules of
Court shall be followed in contempt proceedings but the penalty to be imposed shall not be less than one (1)month but not more than one (1) year imprisonment.
O. Section 16. Credibility of Witness
In all criminal cases, the fact of the entitlement of the Witness to the protection and beneﬁts provided
for in this Act shall not be admissible in evidence to diminish or affect his credibility.
P. Section 17. Penalty for Harassment of Witness
Any person who harasses a Witness and thereby hinders, delays, prevents or dissuades a Witness
from:
(a)

attending or testifying before any judicial or quasi-judicial body or investigating authority;― xv ―

(b)reporting to a law enforcement ofﬁcer or judge the commission or possible commission of an
offense, or a violation of conditions or probation, parole, or release pending judicial proceedings;(c)seeking the arrest of another person in connection with the offense;(d)causing a criminal prosecution, or a proceeding for the revocation of a parole or probation; or(e)performing and enjoying the rights and beneﬁts under this Act or attempts to do so, shall be ﬁned
not more than Three thousand pesos (P 3,000.00) or suffer imprisonment of not less than six (6)months but not more than one (1) year, or both, and he shall also suffer the penalty of perpetual
disqualiﬁcation from holding public ofﬁce in case of a public ofﬁcer.
IV. ISSUES AND CHALLENGES

A. Admission to Witness Protection Program
Under the law a person who is “testifying or about to testify before any judicial or quasi-judicial body”
can be admitted in the program. Provisional coverage for a period of ninety (90) days, subject to re-evaluation,is allowed for witnesses under serious threats so that they can be given certain beneﬁts even if all the required
documents for application have not yet been completed. Although application for admission requires strict
compliance with statutory requirements, stringent vetting procedures and threat evaluation, the program has
liberalized admission requirements especially when threat level on bona ﬁde witnesses in media and politicalkillings is high.
B. Lack of Intelligence and Security Force
Presently, the Program has no existing intelligence and security force. It has to rely to other law
enforcement agencies to augment the temporary services of the Intelligence Security and Operations Group(ISOG). Under the set-up, Mission Order of ISOG personnel are issued either by the National Bureau of
Investigation (NBI) or the Philippine National Police (PNP).
In the past there were plans for the establishment of an organic security force to strengthen the
Program’s organizational structure. From the inception of the Program the protection and security of its
witnesses have mainly been provided by its Intelligence Security and Operations Group (ISOG) composed ofcontractual employees most of whom came from the police and military service. Augmentation, as may benecessary, is provided by the National Bureau of Investigation (NBI) and Philippine National Police (PNP)
with whom the Program has an existing Memorandum of Agreement.
The plan however has been shelved mainly because due to the prevailing economic crisis, drasticchange (formation of new bureaucracy, creation of plantilla positions) will weigh heavily on its weaklogistical support which may be better prioritized for the witnesses’s basic needs.
Moreover, creation of plantilla positions may seem counter to the Program’s highly conﬁdential nature
which requires utmost trust and conﬁdence in its employees.
C. Weak Support System
Witnesses often decline to testify for the prosecution not only because of fear of physical harm but
more often because of economic dislocation. Through the years the inventory of witnesses and theirdependents have dramatically risen together with the high number of cases of national interest, political andExtra-Judicial Killing cases. However, the program has to work on a shoe string budget to fund judiciously
and effectively allocate its meager resources to witnesses-clients and to support its administrative andoperational requirements.

― xvi ―

Although the program provides psycho-social counseling to witnesses as maybe necessary, there is no
support system for recreation and self development for witnesses for them to become productive, alongside
the protecting and security aspect of the program.
Much as the Program hopes to enhance witness benefits this cannot be done unless the budgetaryrequirements be made available to them.
D. Uneven Application of the Law
Under RA 6981 any person who has witnessed or has knowledge or information on the commission of
the crime and has testified, is testifying or about to testify may be admitted provided that he is not a law
enforcement ofﬁcer even if he would be testifying against other law enforcement ofﬁcers.
Under the law, policemen and military are not qualiﬁed to be admitted under the program; however, incases in which these law enforcers are testifying against their superiors, who have power and authority overtheir promotions, assignments and other aspects, it is simply impossible for them to come forward and testify
without protection.
In such a case, only the immediate members of his family may avail themselves of the protection
provided under the WPP law. However, the WPP has issued Certiﬁcates of Admission to police ofﬁcers with aproviso that only immediate members of his family may avail of the protection provided under the RA 6981.
E. Role of Other Law Enforcers
The law enforcer’s role in protecting witnesses: In practice, while the law enforcers encourage
witnesses to come forward, they do not take prompt or effective actions to protect them. Under the police
force’s rules, it is the responsibility of the police to give protection to any person that is being threatened,even if the person is not a witness. If protection is necessary, the police may request/recommend that the DOJ
admits the person to the program once a case has been ﬁled. Because of the lack of protection for witnesses atthe early stage of the process, such as during police investigations, most cases do not progress beyond theinitial stages of investigation.
V. CONCLUSION
Crimes have evolved with the progression of technology. Criminals have become more sophisticatedand intelligent. If they cannot ﬁnd ways to go around the laws and legal procedures, they threatened, harassed
or even bribed the witnesses of justice. This extensively challenges the government in terms of law
enforcement and crime prevention.
I believe that no amount of law enforcement could prevent or thwart criminal activities. We needvigilance, cooperation and support of the people in the dispensation of criminal justice system. As we impose
laws and moral obligations, let us equally provide our citizens with security and protection to counteract theperil of being hunted or harassed by anti social elements. We are obliged to act on account of numerous
experiences faced by the courts of witnesses turning hostile due to threats, coercion and monetaryconsiderations at the instance of those in power, their henchmen and hirelings and other innumerable corrupt
practices ingeniously adopted to smother and stifle truth. As a result truth and justice become ultimate
casualties. 1Broader public and societal interests require that the victims of the crime who are not ordinarily
parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even inslow process but irreversibly and irretrievably, which if allowed would undermine and destroy publicconfidence in the administration of justice, which may ultimately pave way for anarchy, oppression and

1 WITNESS PROTECTION-Bird’s Eye View, A. Hariprasad.

― xvii ―injustice resulting in complete breakdown and collapse of the ediﬁce of rule of law, enshrined and jealously
guarded and protected by the Constitution.

― xviii ―VISITING EXPERTS’ AND ADVISER’S PAPERS AND CONTRIBUTIONS

Ms. Karen Kramer, Visiting Expert
Senior Expert
Division for Treaty Affairs
United Nations Ofﬁce on Drugs and Crime

Ms. Anne Katharina Zimmerman, Visiting Expert
Public Prosecutor
Legal Desk Ofﬁcer, Division RB2 – Criminal Procedure (Court Proceedings)
Federal Ministry of JusticeGermany

Mr. Robert E. Courtney III, Adviser
Department of Justice Attaché
Embassy of the United States in the Philippines― 1 ―WITNESS PROTECTION AS A KEY TOOL IN ADDRESSING SERIOUS AND
ORGANIZED CRIME
Karen Kramer＊

I. INTRODUCTION
Many countries are affected by criminal activities that have a profound impact on human security anddevelopment, such as corruption, drug trafﬁcking, serious and organized crime, human rights violations andterrorism. Yet, the ability the criminal justice systems of countries to investigate and prosecute such forms ofserious crimes are often very limited. One of the challenges for many for countries is in obtaining thecooperation of victims and witnesses in order to obtain important information and evidence about suchcriminal matters.
This paper will discuss: 1) the globalization of organized crime as background on why organizedcrime is a problem for all states; 2) why witness protection measures are important for the effectivefunctioning of criminal justice systems; 3) what is meant by the concepts of victim and witness assistance,
support and security; 4) some of the factors that have given rise to witness protection programmes; 5) the
objectives and key features and elements of most witness protection programmes; 6) the use of witness
protection; and 7) provide some recommendations. This paper looks at witness protection primarily from thepoint of view of serious and organized crime but mentions also its use in the human rights context as well as
in the work of the International Courts and Tribunals.
The paper draws substantially from the UNODC Good Practices for the Protection of Witnesses in
Criminal Proceedings Involving Organized Crime manual published in 2008, as well as upon information
obtained from many colleagues working in the ﬁeld of witness protection around the world whose expertise,support and advice have been instrumental to the work of UNODC in supporting states in this area.

II. ORGANIZED CRIME - AN INTERNATIONAL PERSPECTIVE1
Globalization has facilitated the diversification of organized criminal groups and has permitted adramatic (although little understood) growth in the global prevalence of organized crime. In 2004, the United
Nations High-level Panel on Threats, Challenges and Change, identiﬁed transnational organized crime as oneof “six clusters of threats with which the world must be concerned now and in the decades ahead”.2 In
February 2010, the UN Security Council noted that “in a globalized society, organized crime groups andnetworks, better equipped with new information and communication technologies, are becoming morediversified and connected in their illicit operations, ’ which in some cases may aggravate threats tointernational security.”3 Moreover, it noted with concern “the serious threats posed in some cases by drug
trafﬁcking and transnational organized crime to international security in different regions of the world.”4
Although organized crime (and corruption) affect both developed and developing regions there is＊
Senior Expert, Division for Treaty Affairs, United Nations Ofﬁce on Drugs and Crime.
1 See also, The Globalization of Crime, A Transnational Organized Crime Threat Assessment, UNODC 2010.
2 Statement at UN Security council, SC/9867, February 2010.
3 A more secure world: Our shared responsibility, Report of the High-level Panel on Threats, Challenges and Change, United Nations,
2004, p.2
4 Ibid.

― 3 ―more of a risk for developing states. In developing regions where State institutions and mechanisms are intransition, organized criminal groups have proven very successful in mobilizing themselves to meet the goods
and services demands of unregulated markets. They are able to use bribery and other forms of corruption to
co-opt public officials in order to achieve their criminal objectives. Overtime, these groups become more
powerful and are thus better able to threaten the growth of parallel legitimate structures.
As globalization increasingly guides a new international order, the dilemma becomes more obvious:
How can a multilateral system created to deal with tensions between States ﬁght criminal groups that are nonState, yet transnational and powerful enough to threaten sovereign States? 3 The answer is two pronged. States
must continue to strengthen their own capacity, but given the global nature of the threat, national efforts must
form part of a coordinated multilateral response.
At the national level, organized crime (and corruption cases) can be some of the most difﬁcult andcomplex to investigate and prosecute. Disrupting or dismantling criminal groups requires getting information
about actors, activities and financial dealings that can difficult to obtain because of the secrecy of theiroperations and because corrupted ofﬁcials are often paid to alert and protect them from such investigations.
The tools that are routinely used by successfully law enforcement investigations to bring down criminalgroups have been:
1) The use of criminal intelligence in order to understand the threats that presently and are likely to affect aparticular jurisdiction and region and to assist law enforcement authorities in prioritizing and allocating its
resources;
2) Informants and whistle blowers, to provide information about where to look and what to look for;3) special investigation techniques, such as electronic surveillance and undercover operations, in order topenetrate these groups and gain evidence;4) the ability to persuade persons working for criminal organizations to provide information and, more
importantly, testimony about the identities and the activities of criminal organizations in exchange forsome leniency;
5) The ability to provide security to witnesses, including relocation and a new identity.
These elements, along with comprehensive and effective anti-money laundering schemes and theability to size and conﬁscate the proceeds of crime and the ability to effectively cooperate with other countries
for mutual legal assistance and extradition, are the main elements of any successful anti- organized crime
programme and are also key elements in the investigation and prosecution of corruption cases. Corruption too
thrives in secrecy where both the giver and the taker are beneﬁciaries.

III. ASSISTANCE, SUPPORT AND SECURITY FOR VICTIMS AND
WITNESSES AS ELEMENTS IN UPHOLDING THE RULE OF LAW
A. Vitim and Witness Assistance and Support
The process of investigating and prosecuting offenses, grave or not, depends largely on theinformation and testimony of witnesses. In this regard, witnesses are the cornerstones of successful national
criminal justice systems. Prosecutors depend upon witnesses who are reliable- whose testimony can be
accepted as truthful, accurate and complete. The recall of witnesses and their ability to relate relevant
information may be affected by many factors, including age (such as for both child and elderly witnesses),
intellectual or physical impairment, language, by their relation with the offender or involvement in the case or
offence or due to trauma they have suffered as a victim. In addition, the needs and rights, where appropriate,of victims should always be addressed to ensure that they are treated with care and respect and are not further
victimized. Therefore it is good practice for criminal justice systems to provide assistance and support
measures to victims and other witnesses in order to facilitate their ability to participate in the criminal justicesystem and to give the kind testimony that is required for the maintenance of the rule of law.5― 4 ―Assistance and support measures should be employed before, during and after a trial to help witnesses
in coping with the psychological and practical issues they may have in testifying. The may also be used incoordination with procedural protections and other security measures. Security provided by the police isaimed at providing physical security before during and after trial. Procedural protections are those that may
be used both to support a witness’ ability to testify as well as to enhance a safety before and during the trial.
Witness protection programmes are considered a last resort providing more special protection measures,
including those of international relocation and identity change.6
A growing number of criminal justice systems provide a range services to victims as well as tovulnerable witnesses which may include: information about the rights of victims, information about the rolesof actors in the criminal justice system, assistance in obtaining medical, social, and psychological service that
may be provided by the state or by non-governmental organizations and service providers, assistance inobtaining compensation (victims), and providing a support person while testifying. Some jurisdictions
provide services only to victims and others provide services to victims and witnesses. Services may also be
provided to help minimize obstacles to participation in a criminal hearing or trial. (such as transportation andchild care).
Again, it is important to emphasize that the purpose of witness assistance as distinguished from
witness protection, is to achieve efﬁcient prosecution and avoid secondary victimization. While such services
are generally provided first by the state, non-governmental organizations with experience in dealing withvulnerable categories of the population can prove valuable partners in this process.7
B. Witness Security
It is often the case that witnesses neither want to cooperate with law enforcement or judicial
authorities because of perceived or actual intimidation or threat against their person or family member.
“In most of cases (in those not related to organized and other very serious crimes), witnesses do not
face life-threatening situation. Instead, they suffer verbal threats, intimidation, harassment, assault, property
damage or simply fear of reprisal as a result of their cooperation with the [authorities].”8 Further, the risk ofharm in the majority of instances lasts only to the conclusion of the trial or hearing - conclusion meaning after
the convictions, sentencing or appeal process is over). This is because in most cases, the goal of any threat or
intimidation is to prevent the witness from testifying. Where witnesses are at risk, the importance of gettingcases to trial or to conclusion quickly can not be over stressed. Moreover, it is important that police andprosecutors identify at the ﬁrst stages of contact vulnerable witnesses who need special consideration during
their contact with the criminal justice process.
The protection of witnesses is based on three building blocks complimenting and supporting eachother with the most complete system being a mixture of all three disciplines Witness protection thus refers toa range of methods and measures that can be applied at all stages of the criminal proceedings to ensure thesafety and security of witnesses in order to ensure their cooperation and testimony. The measures taken
should be proportional to the threat and of limited duration.
It should be noted that protection of any form should never provide a motivation to testify but merely
remove or counter the witness’ view that he or she is in danger if he/she cooperates. Moreover, no person
should ever be forced to accept protection measures. Consent should always be given by a witness. As apractical matter, unless you have a willing witness, witness security will in any case be a waste of resources.
Witness security measures fall into three categories, i) police protection/target hardening and good

5
6
7
8

See also the UN Guidelines on Justice for Child Victims and Witnesses of Crime.
UNODC Good Practices, p.27.
Ibid, p.28.
UNODC Good Practices, p.29.

― 5 ―operational practices, ii) judicial and procedural measures, and iii) covert witness protection programmes.
1. Police Protection/Target Hardening
The police have the primary responsibility for ensuring safety and security of citizens. In this regard,
good investigative practices and basic police protection provide the basis of all other protection measures.
Good investigative practices include keeping investigations conﬁdential, minimizing contacts with uniformed
police and prosecutors, ensuring that all information about a suspect’s criminal background, especially related
to violence, ties with criminal groups and any acts of intimidation or threats made to witnesses is made known
to prosecutors and judges (especially at bail hearings). At all stages, police and investigators should besensitive to whether the witness has been or is likely to be intimidated, threatened or in danger due to theircooperation.
In cases where a witness feels insecure but there is no ascertainable risk of threat, these feelings ofinsecurity can be addressed by brieﬁng them on personal security, which may include information on how toincrease the security of their homes (fortifying locks and windows), ensuring that they have mobile phones
and emergency contact numbers or an advocate or police ofﬁcer that they can phone, etc.
In addition to the above, where there is some level of risk to a witness, the police can provide security
measures. Some usual police protective measures are close (body guard) protection, regular patrolling aroundthe witness’s residence and place of work, escort to and from the court, installation of security devices at thewitness’s home and perhaps the place of work, monitoring mail and phone calls, and temporary change ofresidence etc.9
2. Procedural Protections
These refer to measures taken at the request of the prosecutor, the witness or sua sponte by the court
to ensure that the witness can testify free of intimidation and fear. There are usually no statutory restrictions
as to the types of crimes or witnesses for which such measures can be allowed.10 These measures can beapplied in sensitive cases (such as with trafﬁcking in persons, sex crimes, or family crimes) and where there
are vulnerable victim-witnesses in order to prevent re-victimization by limiting their exposure to the public orthe media or to the accused, during the trial. Procedural measures may include:(a) Anonymous testimony;(b) Presence of an accompanying person for psychological support;(c) shields, disguises or voice distortion;(d) Use of a witness’s pre-trial statement instead of in-court testimony;(e) Testimony via closed-circuit television or videoconferencing(f) Removal of the defendant or the public from the courtroom.
One of the more complex of these procedural measures is the anonymous testimony. Anonymity refers
to the keeping of some or all of the witness’s identity detail hidden from the defence and the public in the rarecases where the substance of the testimony itself does not identify the witness to the defence and where it canbe corroborated by other evidence. Of jurisdictions where this is permitted, some allow it only up to a certain
period before the trial.
In this way it is felt that the witness can be protected for the short period his or her identity is revealed
to the defence. In some jurisdictions, the witness may be examined in court by the defence but is not obliged
to state his or her true name or provide other personal details. This measure can be useful for the testimony ofundercover agents who would be in danger or where ongoing investigations would be compromised if theirtrue identity were known.

9 See also additional information, UNODC Good Practices, p.30.
10 Good Practices for the Protection of Witnesses, p.3.

― 6 ―

Where total anonymity is permitted, the witness testifies behind a shield or is disguised andinformation relating to identity is not revealed. In practice, this measure is useful for cases where witnesses
who were innocent bystanders and whose identity is not already known to the defence. In most cases, thedefendant can readily identify the witness through his or her testimony.
In Germany, when total anonymity is granted, a law enforcement ofﬁcer gives the evidence in court inplace of the witness, stating what the witness saw. The defence is allowed to challenge the testimony asrelayed by the law enforcement ofﬁcer. Additionally, the defence has the right to submit in writing questions
to be put to the anonymous witness by the reporting ofﬁcer, who will subsequently report the answers to thecourt. The Federal Court of Justice has ruled that, because of it’s largely hearsay character, such testimony
has limited value unless otherwise corroborated by other material evidence.11
Another procedural measure that presents some legal issues in the use of shields to reduce potential
intimidation. Their use is not practicable in many jurisdictions to right of the accused to face-to-faceconfrontation with the witness. Where used, screens should not prevent the judge, jury and at least one legal
representative of each party from seeing the witness and from the witness seeing them.12 The problem with
their use for many jurisdictions is that they prevent the accused from seeing the witness’s demeanour and tochallenge his or her credibility on this basis. In Japan, for example, screening is done in such a way that thedefence counsel can still see the witness so that the right to face-to-face examination is not greatly affected.13
A measure that is being more readily used is that of testimony by video-conference.
Videoconferencing refers to the real-time transmission of video (visual) and audio (sound)transmission between two locations. It allows the virtual presence of a person in the territory over which thestate or entity has jurisdiction.14 This technology allows for witnesses to testify from a room adjoining thecourtroom via closed-circuit television or from a distant or undisclosed location. In the courtroom setting, itmeans that a judge, the defendant, the defence counsel and the prosecutor can ask questions of the witness
and see and hear the witness’s answers and demeanour in real time transmission.”15 Videoconferencing
equipment can permit the concurrent transmission of computer images, such as documents [and photos] sothat video can be displayed on one screen and the computer data on another. In other words, a remote witness
can be seen on a big screen while the document being discussed by he witness can be visible simultaneously
also to the judge/jury on screen monitors.
Although the taking of remote testimony via videoconferencing is more often used in the context ofmutual legal assistance between states, it is also increasingly used to take the testimony of protected
witnesses. In this regard it can be used either to avoid direct contact between the witness and the defendantand hence has value for some vulnerable witnesses. It can be also used when the physical security of awitness at a particular court or jurisdiction cannot be adequately addressed.16
Video conferencing technology has advanced to allow for transmission with no interruption or delay
and with excellent visual displays. It is deemed reliable and once up and running, relatively easy and costeffective to use. Moreover, the transmissions can be encrypted so as to prevent the identification of both
locations of the videoconference.17

11 Council of Europe, Terrorism: Protection of Witnesses and Collaborators of Justice (Strasbourg, Council of Europe Publishing,
2006. Also mentioned in the UNODC Good Practices, p.39.
12 UNODC, Good Practices for the Protection of Witnesses, p.35.
13 Ibid.
14 Mutual Legal Assistance in Criminal Matters Act, Canada, Article 22.1(1), R.S., 1985c.30 (4th Supp.).
15 Fredric Lederer, The legality and practicality of remote witness testimony, p.20.
16 www.unodc.org/unodc/en/treaties/stoc-cop-session5-conferencepapers, CTOC/COP/2010/CRP.2, p.2.
17 See, www.unodc.org/unodc/en/treaties/stoc-cop-session5-conferencepapers, CTOC/COP/2010/CRP.8, Expert group Meeting on theTechnical and Legal Obstacles to the Use of Videoconferencing, Report of the Secretariat, p.2. and also, CTOC/COP/2010/CRP.2,
The technical and legal obstacles to the use of videoconferencing, Note by the Secretariat.

― 7 ―At the international level, the use and acceptance of video-conferencing is rising at the international
criminal courts and tribunals which use it to take the testimony of victims, vulnerable witnesses or for
witnesses who are unable to travel to the court’s location for physical or psychological reasons, as well as forprotection purposes.
In summary, procedural measures can be grouped into three general categories depending on their
purpose:(1) “Measures to reduce fear through avoidance of face-to-face confrontation with the defendant,”18
such as the use of pre-trial statements in lieu of in-court testimony (where permitted); removal of the
defendant from the courtroom` (while still watching the trial via a video link); and testimony via closedcircuit television or audio visual links, such as video- conferencing.
(2) “Measures to make it difficult or impossible for the defendant or organized criminal group to trace theidentity of the witness,”19by the use of anonymous testimony or a screen, curtain or two-way mirror to shield the witness while
giving testimony.
(3) “Measures to limit the witnesses’ exposure to the public and psychological stress.”20
such as by a change of the trial venue, removal of the public from the courtroom (hold the session “inCamera”) and by having the presence of an accompanying person to provide support for the witness.”
These measures may be used alone or in combination for greater protection. It is important to keep inmind that however procedural measures are used, due consideration should be due consideration should begiven to balancing the witness’s legitimate expectation of physical safety against the defendant’ rights to afair trial.21
C. Who is a “Witness”
It is worth emphasizing that the term “witness” refers to persons who gives (testimonial) evidence, sothey include experts and victims. The witness protection laws of some countries also include judges,
prosecutors and police, and even journalists, as persons who are entitled to witness protection. While such
persons may indeed suffer threats and be in risk of harm, putting they don’t need witness protection
programmes but rather the protection of the police along with other measures such as temporary
reassignment.
Sometimes the issue comes up as to whether informants can be provided protective measures and thelegislation of some countries includes informants as persons eligible for protective measures. But it should beclariﬁed that in most jurisdictions an informant is a person who provides information to authorities which isused for the purposes of further investigation and their identity is not disclosed. Therefore, they do not
become witnesses. There is frequently confusion about the differences between being an informant, whistle
blower and witness so whistle blower protection so it is worth looking at these issues more closely.
D. Who is a Whistle-blower?
A whistleblower can be a person who merely provides information or he/she can be a witness in acriminal matter. In order to better understand the difference between a whistleblower and an informant, one
needs to understand what is meant by whistle-blowing.
There are many definitions of whistle-blowing but here it is preferred to view it as a means ofpromoting accountability. Whistle-blowing can perhaps be best understood by breaking it into some key
elements:

18
19
20
21

Good Practices for the Protection of Witnesses, p.32.
Ibid, p.32.
Ibid, p.33.
Ibid, p.33.

― 8 ―i) an act of disclosure;ii) by a person with privileged access to data or information;iii) of an organization;iv) either public or private;v) about corrupt, illegal, fraudulent or harmful activity;vi) under the control of that organization;vii) the disclosure is made to an internal entity or to external entities, such as regulatory bodies,ombudsmen, anti-corruption entities, law enforcement agencies or the media;viii) with the purpose of evaluating/assessing the risk, threat, conduct so that it can be removed,
stopped or reduced.
Whenever a risk arises that the activities of an organization have gone wrong, it is usually the people
working for the organization who ﬁrst know about it. While employees are the people best placed to raise
concerns and so enable the risk to be removed, stopped or replace, they also often have the most to lose.
Whistleblowers can too can be victimized - they can ostracized by peers and management, suffer harassment,
be demoted or moved to less desirable locations, lose jobs, be charged with crimes or with violating
employment agreements for divulging information, or in some cases they may face physical danger.
So, let us return to the question of what is the difference between an informant and a whistle- blower.
The main difference is in motivation and also liability. Most informants are persons somehow involved in orconnected to unethical or illegal activities. They disclose information for personal beneﬁt, some for money
but most as a means to reduce the liability for their own illegal conduct, either voluntarily or due tocoercion.22 Thus we can say that their motivation is generally for private gain.
By contrast, a whistle blower makes the disclosure not for any private beneﬁt but in order to beneﬁt alarger community - whether it be the organization or for the public at large, or both.
“In most cases, whistleblowers receive no benefits for their disclosures outside of the ability tomaintain the status quo.”23 However, it is true that there are some anti-corruption laws that allow for rewards
to be given to those that disclose wrongdoing, mainly for fraud and corruption. In Asia, a number of countries
give rewards to those who have revealed corruption.24 Some of these, like the law of South Korea, give thewhistleblower up to a certain percentage of the money recovered.25 So, although there can be a beneﬁt, there
is no guarantee for the whistleblower that his/her disclosure will result in a ﬁnancial gain. This is certainly not
the case with paid informants.
E. Witness Protection Programmes
The primary objective of any witness protection programme is to safeguard witnesses in cases ofserious threat which cannot be addressed by other protection measures in cases of special importance where
the evidence to be provided by the witnesses (including victims) cannot be obtained by other means. Witness
protection programmes have been deﬁned by the Council of Europe as:
A standard or tailor-made set of individual protection measures which are, for example, described in amemorandum of understanding, signed by the responsible authorities and the protected witness orcollaborator of justice.26
The UNODC Good Practices for the Protection of Witnesses manual further defines a witness
protection programme as,

22
23
24
25
26

Whistleblowing, International Standards and Developments, David Banisar, May 2006, revised February 2009, page 4.
Whistleblowing, International Standards and Developments, David Banisar, May 2006, revised February 2009, p.4.
See Whistleblowing, International Standards and Development, pages 5, 37.
Ibid, p.37.
Council of Europe, Recommendation Rec (2005) 9, of the Committee of Ministers to member states on the protection of witnesses
and collaborators of justice.

― 9 ―A formally established covert program, subject to strict admission criteria that provides for the
relocation and change of identity of witnesses whose lives are threatened by a criminal group becauseof their cooperation with law enforcement authorities.27
1. Historical Development of Witness Protection Programmes
In order to fully understand the objectives of most witness protection programmes, it is helpful tounderstand their historical development. Witness protection programmes have developed out of need to more
effectively deal with organized crime and even in earlier times, terrorism. As noted earlier, investigating theactivities of organized crime groups and terrorist cells can be difﬁcult for law enforcement authorities due totheir secretive nature. Often the only way to gain information about the activities and actors is through one of
their members who decide to cooperate with law enforcement authorities for crimes that they have committed,
generally in the hope of obtaining some leniency from the court. 28 Such persons are referred to as“collaborators of justice”.
One thing that all such groups have in common – whether we are talking about the Italian Mafia,
narcotics trafﬁcking groups, terrorist cells, inner city gangs or “crews”, motorcycle and prison gangs – is thecode of silence that they impose on their members. If the code of silence is broken, the penalty is usuallydeath. When a justice collaborator decides to break the code of silence and collaborate with law enforcement
authorities in testifying for the prosecution against the members of the criminal organization, the organization
will call for his assassination. It is institutionally necessary for criminal organizations to keep their disaffected
members in line by guaranteeing that there is no “safe haven” from their retaliation.29
Therefore, witness protection programmes developed in order to provide a “safe haven” from such
retaliation for collaborators of justice. It is for the same reason that the successful reputation of a witness
protection program as a “safe haven” is its most important attribute. 30 If a witness protection program ispenetrated and protected witnesses are killed, then others will not consider the programme as an alternativeeven if this means serving a long or even a life sentence in prison.31
2. Witness Protection involving Human Rights Cases
It is important to note that although witness protection programmes are most commonly referred to inconnection with organized crime and to a lesser extent, terrorism and corruption cases, it can and is available
for other serious cases, such as human rights violation.
Witness protection is also an issue for states that have suffered civil conﬂicts where government actors
committed crimes against its citizens, as in Argentina and Brazil. The same principles and criteria that apply
to the protection of witnesses for the prosecution or organized crime and other serious cases can be applied
for the prosecution of human rights violations. The main difference is that witnesses of human rights
violations are frequently victims of these crimes rather than criminal associates/collaborators of justice. For
these people, the measures of relocation and identity change may not be acceptable because they may imply
further victimization. Brazil for example, established a protection programme specialized to deal with humanrights cases under the authority of a Presidential Commission on Human Rights. While most services areprovided by the protection unit, support services and even relocation assistance are provided by a network ofvetted non-governmental organizations (NGOs). This system has been in place for several years and

27 UNODC Witness Protection Good Practices manual, p.5.
28 A collaborator of justice “means any person who faces criminal charges, or has been convicted of taking part in a criminal
association or other criminal organization of any kind, or in offences of organized crime, but who agrees to cooperate with criminal
justice authorities, particularly by giving testimony about a criminal association or organization, or about any offence connected withorganized crime or other serious crimes.” Council of Europe, Recommendation Rec (2005)9, of the Committee of Ministers tomember states on the protection of witnesses and collaborators of justice.
29 Information provided by Mr. Victor Stone, Ofﬁce of Enforcement Operations, U.S. Department of Justice.
30 The United States witness protection programme has been successful because no witness has ever been killed while following the
program’s rules.
31 Information provided by Mr. Victor Stone, Ofﬁce of Enforcement Operations, U.S. Department of Justice.

― 10 ―

reportedly works well. Due to a history of human rights abuses and corruption by the government, this system
was developed as a way to gain the trust of civil society. The other advantage of this system is that NGOs
often have better resources than local government institutions as well as knowledge of local conditions andculture.
Another example comes from Argentina.
In “2006, when the first “state terrorism” trial in Argentina was coming to an end, Julio Lopez, awitness who had identiﬁed the main perpetrator in court, disappeared…(and had never been found). In theensuing months, the country was hit by a wave of threats and in some cases, attacks on witnesses, lawyers,human rights defenders, prosecutors and judges involved in cases against member of the former military
regime.”32
As a result, the government began looking at the issue of witness protection in these cases. Although
the issues involved are too many for further discussion here. The situation in Argentina points to not only
failures of existing witness protection capabilities but likely also to other issues in the criminal justice system.
One should keep in mind that witness protection is but one tool of a criminal justice system that relies upon
the effective and appropriate responses in other areas.
3. The Rise of Witness Protection Programmes
The last few years has seen a rapid rise in the number of states that have established or are establishingwitness protection programmes. Why is this happening? As mentioned earlier, the increased impact oforganized criminal and terrorist groups is a factor. Perhaps an additional reason is the need for regional andinternational cooperation for the protection of witnesses. In a small country where everyone knows one
another or where cultural or linguistic differences will easily identify an outsider, it is perhaps moreimperative to have the ability to cooperate with other countries for the protection and relocation of witnesses.
However, to do this requires the institutionalization of a programme that will have the knowledge andspecialized expertise (protection ofﬁcials, psycho-social workers, doctors, administrators for witness assets,etc.), services and other resources to manage all the elements required to relocate witnesses and family
members, and to have the personal contacts that are so important in cooperating with the programmes of othercountries.33
4. Witness Protection at the International Courts and Tribunals
At the international level, it is apparent that witnesses are no less important for the success of the workof the International Criminal Court (ICC) and other special courts and tribunals.34 The Rome Statute contains
important provision for the protection of victims and witnesses. Article 68(1) provides that the Court shalltake appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy ofvictims and witnesses. Furthermore, ICC case law has interpreted the Rome Statute broadly as to who isentitled to protection.
The work of the ICC, and other international tribunals, in protecting victims and witnesses iscomplicated by several factors. Unlike natural courts, they do not have their own police force that can protect
their witnesses nor do they have territorial jurisdiction to keep or relocate them. Moreover, many of the

32 The protection of witnesses of serious human rights violations: Cases in Argentina, Federico Borello, 2010.
33 Some evidence of the need for dedicated programmes with specialist expertise with the ability to provide the range of social,educational and support services normally provided by protection programmes comes from the experience of countries with multiple
local police authorities providing witness protection services. Police forces may use different standards and criteria. For those
relocating witnesses, including abroad, these issues along with coordination with different local authorities can become problematic.
Further, it is probably not easy or resource practicable for all but the forces of the larger cities to have and to maintain the experience,expertise and/or familiarity with issues relating to domestic and international relocation. As a result, there is a move towards
providing a centralized policy making and coordinating body for witness protection programmes that operate at local levels. Thisissue requires, however, some further examination.
34 The Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Tribunal for Rwanda (ICTR) and theformer Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL).

― 11 ―

victims and witnesses of these courts and tribunals come from war, conﬂict or post-conﬂict zones where therule of law is lacking. It is difﬁcult to maintain their safety when it is precisely those institutions that arenormally charged with protecting the public, such as the police and the military, who are the potential
aggressors, or are incapable or indifferent. For such witnesses, relocation abroad may be the only viableoption. However, this may mean not just severing all ties with family and friends left behind but also may
require adjusting to life in an entirely different culture and environment.
Yet it is often difﬁcult for the ICC to ﬁnd countries that will take in its victims and witnesses due tolegal and cultural difference, for example, the practice of polygamy can prove problematic for many
countries. Finally, there is the cost factor of supporting witnesses who are not likely to ever have the means in
a foreign environment to support themselves. Perhaps as a result of the above, only a handful of countries
have entered into memorandums of understanding agreements for cooperation in the relocation of witnesses
with the ICC. Another issue that has not been well defined is who is responsible for protecting witnesses
when tribunal proceedings conclude. This has led the International Tribunal for Rwanda and the Special Court
for Sierra Leone, for example, to provide training and support to national authorities. These are just some of
the issues and challenges related to the protection of victims and witnesses by the ICC and other international
courts.35

IV. LEGAL BASIS FOR WITNESS PROTECTION
A. National Legislation
As noted previously, witness protection programmes have commonly developed because of need.
Perhaps as a result, some countries progressively developed witness protection capabilities and programmes
without a speciﬁc legislative basis, such as the Netherlands, Norway and New Zealand. In these countries,
policy, coupled with the agreements signed with witnesses admitted to the programme, provide a sufﬁcientand adequate framework for the programme’s operations.36 It is further interesting to note that countries
without a speciﬁc legal basis include both common law as well as civil law countries that would normallyrequire a legal basis.
However, it is recommended that covert protection programmes be grounded in policies and a legal
framework due to their impact on the rights of the accused, the life of the protected persons and due to thefinancial resources needed to fund such programmes. In addition, other laws, such as criminal procedurecodes and rules of court, will likely need to be reviewed and updated in order that they can provide forprocedural protections (if not contrary to other laws).
At minimum, legislation should specify:i) protection measures that may be used;ii) application and admission criteria and procedures;iii) the authority responsible for the programme’s implementation;iv) criteria upon which a witness may be terminated from the programme;v) the rights and obligations of the parties;vi) that the programme’s operations are conﬁdential;vii) provide for penalties for the disclosure of information about protection arrangements or about theidentity or location of protected witnesses37
B. Bi-lateral and Multi-lateral Treaties and Regional Agreements
Witness protection authorities wanting to cooperate for the purpose of witness relocation will need

35 For an analysis and information about the work related to protection of victims and witnesses of the ICC and the International
Tribunals, see, The Justice Sector Afterthought: Witness Protection in Africa, Chris Mahony.
36 UNODC Good Practices, p.44.
37 Ibid, p.44-45.

― 12 ―

some form of informal agreement directly between the authorities which may be modiﬁed on a case by casebasis. Some protection authorities are able to operate simply one protection authority to another. However,probably more countries need some additional level of agreement which can be at the institutional level(between police agency and ministry). An agreement can be as simple as, the Ministries of X of State A andthe Ministry of X of State B agree to cooperate for the protection of relocated protected witnesses.
States can ratify bi-lateral or multilateral treaties. One example of countries that went the treaty routeis the Baltic States (Estonia, Latvia and Lithuania). However, due to the length of time that treaties can taketo negotiate and ratify, this is the least practical solution. States can also join framework agreements done aspart of regional organizations.
C. International Conventions
Finally, states can use International Conventions as a basis for cooperation. When Slovenia drafted its
witness protection law, it did not include a provision that mentioned international cooperation for the
relocation of witnesses. However, Slovenia was a Party to the UNTOC, so it used this Convention as a basis
for cooperation with a country for this purpose until it was able to amend its witness protection legislation.
The UNTOC and the UNCAC both contain provisions relating to the need to protect witnesses andother persons from potential retaliation or intimidation with respect to the giving of testimony.38 Under both
Conventions protective measures could include physical protection, relocation, non-disclosure or limitations
on the disclosure of information concerning identity or whereabouts and by allowing the use of testimony via
communication technology such as, video links.39 The Protocol against Trafficking in Persons contains
provisions in Article 6 regarding assistance to and protection of victims of trafficking in persons, and theProtocol against the Smuggling of Migrants contains in Article 16 provisions concerning protection andassistance measures. There are many other Conventions, such as those relating to human rights, that touch up
the need to protect victims and witnesses.

V. ELEMENTS OF A WITNESS PROTECTION PROGRAMME
Regardless of whether there is a legal framework on or not, what can be said about the majority of
witness protection programmes is that they tend to operate on the basis of similar principles and rely on thesame key elements, including the following:i) Participation must be voluntary;ii) Participation is for life, if required. However, the ﬁnancial support provided will be for a limited
duration;iii) Participation should not be seen as a reward for testimony;iv) Participation should not make the witness better off than he/she was before entering the
programme;v) All existing legal obligations must be kept;vi) Due to the emotion hardship for witnesses and their families and due to the signiﬁcant resources
required of the state, relocation and change of identity are tools of last resort.
A. Location and Institutional Structure of the Programme“Witness protection programmes can be institutionalized in different ways. For some countries, thepolice force is the programme’s natural environment, as out-of-court protection of witnesses is seen primarily
as a police function. For others, separating protection from the investigation is of higher value in order toensure objectivity and minimize the risk that admission to the programme unwittingly may become an
incentive for witnesses to give false testimony that they believe the police or prosecution wants or needs.” 40

38 UNTOC, Article 24, Para 1 and UNCAC, Article 32, Para. 1.
39 UNTOC, Article 24, 2 (b) and UNCAC, Article 32 2(b).

― 13 ―

Where a programme is located within the police force, “ the isolation and autonomy (organizational,
administrative and operational) of the covert unit responsible for the implementation of the programme fromthe rest of the police force is of great importance.”41
In a second category of countries, programmes are separated organizationally from the police and sit
under the equivalent of the Ministry of Justice, the Ministry of the Interior or the State Prosecutor.42“In a third group of countries, programmes are implemented by a multidisciplinary body consisting of
high-level representatives of the law enforcement, prosecutorial, judicial and government authorities andsometimes from civil society. That body takes decisions on such matters as admission to the programme andtermination. It may also exercise some oversight over implementation of the programme and make budgetarysubmission to the Government.”43
There are additional models, such as that of Brazil where witness protection falls under a commission
for human rights and Kenya, which in 2010 created an independent witness protection agency which also has
an oversight body.
Within these categories, witness protection programmes can further organize themselves to have one
sub-unit dealing with victims and other dealing with collaborators of justice (former criminals).
Regardless of the location of the programme, the key issues to a programme’s success seem to be,“separation from the investigation, conﬁdentiality of procedures and operations, and organizational autonomy
from the regular police.”44
B. Covert Nature
Witness protection programmes are covert units meaning all information about witnesses and theoperational actions taken by the programme must be kept confidential and have their own databases forstoring information. Since the greatest risk of compromise to a programme is the human element, all staff,
including administrative personnel, must be vetted to ensure the highest possible level of security. Only by
setting the highest professional standard can those responsible for the programme (and for the lives of theprotected witnesses) meet its demanding requirements.45
C. Transparency and Accountability“Transparency is a basic principle of good governance and witness protection programmes should
similarly be held accountable for money dispensed.” However, receipts for hotel stays or plane tickets may
reveal the witness’s true identity or location. Therefore, in order to maintain confidentiality, “witness
protection programems are usually subject to special procedures for auditing and reporting.”46
D. Neutrality
Admittance to a protection programme should never be viewed by the protected person (or the public)
as a reward for their cooperation. To safeguard their neutrality, witness protection programmes endeavor to,admit witnesses according to a set of predetermined criteria among which the level of threat is a key
determinant; maintain separation from investigation agencies (as noted above); and make objective decisions
independently from the prosecution after obtaining and evaluating the prosecution ’s views about the

40 UNODC Good Practices, p.45. Countries in this category include, Australia, Austria, Canada, Hong Kong Special Administrative
Region of China, New Zealand, Norway, Slovakia, and the United Kingdom.
41 Ibid, p.46.
42 Columbia, the Netherlands, the Phillippines, South Africa and the United States.
43 Italy and Serbia both have this model. Ibid, p.46.
44 Ibid.
45 Ibid, p.53.
46 Ibid, p.57.

― 14 ―

importance of the case and the evidence offered by the witness.47
E. What are the Criteria for Admission to a Programme?
A request to be admitted to a protection programme can be made, depending upon the jurisdiction, by
the witness, a law enforcement agency, a prosecutor or a judge. There should be standard procedures for the
information required when making a request. Then the request would generally be forwarded to the decisionmaking authority with a recommendation on whether or not the request should be accepted. This processensures that sponsorship from non-prosecution sources includes a knowledgeable analysis of the potential
value to the prosecutor of the admissible evidence elicited from the proposed programme candidate.48
Upon getting a referral request for protection, the witness protection programme will conduct anassessment that will look at the following elements:a) The level of threat to the person’s life;b) The personality and psychological ﬁtness of the person to adjust to and follow the stressful rules ofthe programme;c) The danger that the person may pose to the public if relocated under a new identity (typicallyapplies to justice collaborators);d) The critical value of the witness’s trial testimony for the prosecution and the impossibility ofgaining such information from another source;e) The importance of the case;f) The family situation of the person, such as, number of family members that would need to be
included, their ages, any medical issues or special needs, their criminal records, etc.49
1. The Threat Assessment
The threat to a witness must be against their life or to family or close associates. Whether a threat
exists will be determined by a threat assessment which may be performed by the witness protection unit alone
or in cooperation with the police. The importance of the threat assessment can not be overstated as it is the
key tool in determining whether a witness should be admitted to a programme or given alternative protective
measures. This assessment is used to identify, assess and manage the risk and potential perpetrators oftargeted violence against a witness and may be carried out periodically in order to determine whether tocontinue, change, or discontinue protective measures. A threat assessment should address issues such as, i)the origin of the threat (group or person); ii) the patterns of violence; iii) the type of organization and its
culture (for example, street or motorcycle gang, Maﬁa-type group, or terrorist cell); iv) the group’s capacity,
knowledge and available means to carry out threats.50
In contrast, “a risk assessment examines the chances of the threat materializing and assesses how it
can be mitigated. These assessments are conducted according to set standards and using a matrix. Action istaken to reduce the probability of the threat being carried out. The risk assessment is conducted by theprotection authority and is a key factor in providing tailor-made protection to suit the needs of the witness.”51
2. Suitability of a Witness
In deciding whether to admit a person to a protection programme, the authority will have to balance
the threat against the ability of the witness (and family members) to maintain secrecy otherwise they risk
putting themselves and the programme’s integrity in jeopardy. Another factor is whether there is a likelihoodof relapse into criminal activity. Most protected witnesses are so-called career criminals who have never held
legitimate employment and only know a life of crime. Finally, there is the person’s willingness to abide by

47
48
49
50
51

Ibid, p.56.
Ibid, p.61.
Ibid, p.61.
Ibid, p.62.
Ibid, p.63.

― 15 ―

the strict limitations imposed by protection programmes on their personal life. Experience shows that overtime, many witnesses refuse to resign themselves to the restrictions imposed and either decides to leave theprogramme voluntarily or are removed.52
3. Value and Relevance of the Testimony“The testimony given by the witness must be crucial to the prosecution. In that respect, it is vital that
before an assessment takes place and before an individual is admitted, the witness provide as full andcomprehensive statement…. This is to ensure that the protection programme or the assessment process will
not be called into question in a court as inducement for the witness’ cooperation.”53
4. The Agreement between the Protected Person and the Witness Protection Authority
Upon admission to a programme, witnesses and other protected persons are required to conclude amemorandum of understanding (MOU), which deﬁnes the rights and obligations of both parties. The MOU
usually includes:
1) “a declaration by the witness that his or her admission to the protection programme is entirely
voluntary and that any assistance must not be construed as a reward for testifying;2) the scope and character of the protection and assistance to be provided;3) a list of measures that could be taken by the protection unit to ensure the physical security of thewitness;4) the obligations of the witness and possible sanctions for violations;5) the conditions governing the programme’s termination.”54
Some of the obligations of the witness include:1) to provide truthful and complete testimony;2) to comply with the protection authorities’ instructions and not to compromise any assistanceprovided;3) not commit a criminal offenses;
4) to disclose all information about past criminal history as well as ﬁnancial and legal obligations;5) to fulfill their legal obligations to third parties prior to entering the programme, to the extent
possible. Recurring ﬁnancial obligations can continue to be fulﬁlled following admission to theprogramme through an intermediary, usually the protection authority.55
Some of the obligations of the protection authority include:
1) Carrying out protection measures;2) Arranging all matters related to a relocation;
3) Providing ﬁnancial support for a limited duration;4) Providing initial assistance with job training and ﬁnding employment;
5) Providing counseling and other social services, including appropriate education56
F. Relocation and Identity
Witnesses can be relocated temporarily or permanently and they can be relocated domestically andabroad. International relocation is at the top end of witness protection services owing not only to thesigniﬁcant costs, resources and impact on the witness but also due to the complicated nature of international
relations. As noted previously, for small countries, the relocation of witnesses abroad is sometime the onlymeans of guaranteeing effective protection. If the level of threat warrants, a witness will need to enter theprotection progamme of the receiving country, where he or she will be provided with a new identity and

52
53
54
55
56

Ibid, p.63-64.
Ibid.
Ibid, p.65.
Ibid, p.67.
Ibid.

― 16 ―

personal documentation.
Terms and conditions between the sending and receiving country are negotiated and set forth in anagreement. Generally, the sending authority hands over responsibility for the safety of the protected persons
and is obliged to go through the receiving authority for any further contact with the witness. The receiving
country usually assumes all costs related to the protection measures. However, others negotiate a cost-sharing
agreement with the sending county and yet others require full reimbursement.57
With respect to the integration of the protected person(s), the receiving country may assist them inﬁnding employment and provide them with training, language courses, health care and other social beneﬁts.
The immigration laws of the receiving country will determine whether protected persons are allowed to workand may be able to issue them temporary work permits. Financial payments should take into account thestandard of living of the witness prior to entering the programme. However, only legally obtained assets aretaken into account in this assessment
Identity change is not done the same way in all programmes. In some cases, the identity change is apermanent change in others, a new identity is provided. If the witness leaves or is terminated from theprogramme, he/she can go back to their former identity.
G. Implication of Relocation and Identity Change for the Witness
The measures of relocation, especially international relocation, and identity change are last resort
measures due to their hardship on witnesses. The process involves severing all ties with the past life,
including all property that might identify or be traced back to the witness. If the protected person acquired theproperty illegally, most programmes do not allow them to keep the property or assets.
Relocation and identity change can be especially difficult for accompanying persons, especiallychildren. Also electronics and internet use provides serious challenges for protected persons and for the
programmes. Witnesses can easily be traced by electronic devices, cell phone and the internet. It is notpossible for any programme to monitor every witness’ use.
H. Financing
The costs associated with setting up a witness protection programme are among the main reasonscountries hesitate to begin. There is no doubt that the costs for such programmes are expensive and this is themain reason why such programmes must be aimed at only the most important cases and within these, only for
those witnesses who meet other criteria previously discussed.
The costs needs to be weighed against the possible benefits, such as disruption or dismantling of
criminal groups by being able to get to their leaders, shorter investigations and more efficient high levelprosecutions.
In the beginning, witness protection programmes tend to be too ambitious and seek to cover too many
witnesses. Over time, strained resources and greater experience will allow for stricter criteria to be applied tolimit the number of participants. Even so, it is not easy to predict how many cases in the future will require
the services of a protection programme. For these reasons, it is important that when preparing a budget, theconcept of sustainability must be factored in. Funds need to be adequate to sustain relocation of witnesses forsome years. As protection is a long-term commitment, expenses are cumulative. Even after the end of theinitial resource-intensive period of relocation, some aftercare is often provided through periodic threat
assessment and emergency responses to counter any unexpected resurgence of the threat.
Countries where a family unit means an extended family face higher costs per witness. In some cases,
even where the number of cases decreases, costs can remain stable or even increase. This can occur because

57 Ibid, p.84.

― 17 ―

attention is focused on more important case where strong criminal groups are involved, making theapplication of protection measures more vigorous and hence, more expensive.
Basic costs include:a) Premises, equipment and trainingb) Staff salaries and overtime;c) Travel costsd) Psychological assessment and counseling for witnesses (and for staff) if a person who can do theseis not hired on a full-time basis;e) Financial allowances/payments to witnessesf) Other costs of support, such as vocational, education, language training.
Expenses differ from state to state, and are dependant upon some of the following variables:a) Existence of and use of alternative police arrangement for emergency and temporary security
provisions;b) Admission criteria;c) Socio-cultural environment which will impact how many family member will generally need toaccompany a witness;d) The duration of stay in a programme;e) Cost of living, including in relocation areas;f) Fast and signiﬁcant changes in the inﬂation rate;g) Overreaching ability of organized criminal groups (for how long? Inside the entire country as wellas in other jurisdictions?)h) The efﬁciency of a criminal justice system, which means how long a person has to be protected
before the trial can greatly increase the need for protection and its costs.
In order to fund a programme, it is important to have a regular source of funding and to have someemergency funds in reserve. Funding might also come from the proceeds from the assets that witnesses
entering the program are obliged to hand over if acquired by illegal means. However, it is inadvisable to fundprogrammes solely through sources that could vary year to year such as through proceeds of asset forfeitures.

VI. RECOMMENDATIONS FOR STATESThe experience of others provides some recommendations for those states wanting to provide
protection measures and even establish dedicated witness protection programmes. First, counties can begin togain experience by using police and procedural protection measures. These measures when applied
appropriately by trained personnel can provide adequate protection for the vast majority of witnesses in need,keeping in mind that protection measures are just one of other important tools that must be collectively andeffectively applied. If the legislative framework is not up to date or does not allow for needed measures,
establish an interagency task force that can educate itself on what is wrong and what could be improved. Suchas task force should ideally embrace ofﬁcials of relevant law enforcement and judicial authorities, including
prison authorities, other governmental agencies, persons responsible for legislative drafting and policy
making. authorities, and NGOs, academics institutions or civil society institutions in order that they will
understand and support any required changes.
For those moving to the establishment of covert protection programmes, it is suggested that they takeserious the need to prioritize the kind of cases the protection programme will be used for as well as toproperly and effectively use threat assessments. All actors involved in this process should be clear about whata witness protection programme is intended to provide and why. The term, “a tool of last resort” can not be
understated.
One of the common mistakes of countries is to want to and try to protect too many witnesses at the― 18 ―

beginning. Instead, programmes should begin by taking just a few witnesses in a year in order to gain
experience and conﬁdence. It has to be remembered that the integrity of any programme - keeping witnesses
safe and keeping operations conﬁdential- is crucial to its long-term viability.
With respect to funding, it is difﬁcult in the beginning to predict costs as there is a cumulative effectfor each witness; moreover extended families will quickly drain resources. A safe rule to go by is to expect
the unexpected by ensuring there is some reserve funding in case of emergencies. At the same time, protection
programmes need to progressively build cooperation with other counties. This too takes time because
cooperation in this area requires the trust and conﬁdence of potential partners for the relocation of witnesses.
Finally, due to its nature, the community of witness protection authorities is a close group and mostare willing to provide expertise and other support to developing programmes.

― 19 ―

SECURING PROTECTION AND COOPERATION OF WITNESSESAND WHISTLE-BLOWERS
An Overview of the Law as it stands in Germany
Anne Katharina Zimmermann＊

I. INTRODUCTION
A. The Significance of Witness Protection in General
German criminal procedure law obliges the criminal prosecution authorities to prosecute all suspects
provided there are “sufﬁcient factual indications” of a criminal offence which may be prosecuted (section 152
subs. 2 of the Code of Criminal Procedure [StPO]1). This so-called principle of mandatory prosecution entails
an obligation to prosecute each suspect and, if the prerequisites for this apply, an obligation to prefer charges.
The principle of mandatory prosecution however encounters restrictions when it comes to serious and themost serious criminal offences, in particular from the field of organised crime, where the conspirative
structures are difﬁcult to penetrate with the existing investigation methods.
It is frequently not possible to penetrate the largely sealed off networks of groups of offenders who
associate in gangs using investigation measures from the outside and to obtain the information particularly
required to solve serious criminal offences. The criminal prosecution authorities hence particularly depend on
information from individuals from the criminal world who can provide the necessary information on
structures and on those running the operation from behind the scenes. One way of making the latter willing totestify is by “rewarding”, in one form or another, information which incriminates others and leads to theirconviction.
Another means of obtaining witnesses who are willing to testify, in particular in ﬁelds of crime inwhich factual information cannot be obtained or is difficult to obtain because of the particular level ofprofessionalism of the offenders, is to structure witness protection so well that such witnesses lose their fearof the offenders and remain willing to testify during the entire proceedings.
B. Definition of “Organised Crime”
Because of the diverse manifestations of organised crime, it is rather difficult to find a conclusive
deﬁnition. The German Federal Parliament established the following deﬁnition2 in 1992 when adopting the“Act on Suppression of Illegal Drug Trafﬁcking and other Manifestations of Organised Crime” (Gesetz zur
Bekämpfung des illegalen Rauschgifthandels und anderer Erscheinungsformen der Organisierten
Kriminalität – OrgKG)3:“Organised crime is understood to mean planned commission by several parties of criminal offences(which are of considerable signiﬁcance individually or as a whole), determined by the pursuit of proﬁt and/or
power, working together for a prolonged or indeﬁnite period of time, dividing tasks, using commercial or
business-like structures or use of violence or other means suitable for intimidation, or attempting to exert aninﬂuence on politics, the media, public administration, judicial authorities or the economy.”＊

Public Prosecutor, Legal Desk Ofﬁcer, Division RB2 – Criminal Procedure (Court Proceedings), Directorate-General for the Judicial
System, Federal Ministry of Justice, Germany.
1 German Code of Criminal Procedure (Strafprozessordnung), Federal Law Gazette 1987 part I, p.1319.
2 Federal Parliament printed paper 12/989; this is at the same time the practical deﬁnition which is binding on the public prosecutionofﬁces, cf. Guidelines for Criminal and Administrative Fines Proceedings (RiStBV) Annex E No. 2.
3 Federal Law Gazette, 1992 Part I, p.1302.

― 20 ―

The term “organised crime” however goes further in the view of the European Union and the United
Nations; accordingly, at least six of the following eleven characteristics must apply4:
・involvement of more than two people,
・for a prolonged or indeﬁnite period of time,・suspected of involvement in serious crimes,
・determined by the pursuit of proﬁt and/or power,・separate roles for each member,・use of some form of discipline or control within the group,・active internationally,・use of violence or other means suitable for intimidation,
・use of commercial or business-like structures,・engagement in money laundering, and・inﬂuence on politics, the media, public administration, judicial authorities or the economy.
The scale of organised crime is made clear if one takes a look at its global annual turnover:
Approximate estimates put this ﬁgure at Euro 500 to 1,000 billion. For comparison: South Korea’s GDP wasapprox. Euro 640 billion in 2009; India’s was Euro 950 billion and Germany’s was approx. Euro 2,500
billion. This is therefore a phenomenon of considerable dimensions, not only in terms of criminal law, butalso in economic terms.

II. THE CURRENT SITUATION, ISSUES AND CHALLENGES IN GERMANYREGARDING WITNESS/WHISTLE-BLOWER PROTECTION AND
EFFORTS TO IMPROVE THE SITUATION
Witnesses in Germany are on principle obliged to appear before the public prosecution ofﬁce and incourt in response to a summons, to testify truthfully and to swear an oath on their testimony if requested to doso (unless the right to refuse testimony or to refuse to provide information applies in accordance with sections
52 et seqq. StPO). These are civil duties which are not established by the Code of Criminal Procedure, but are
imposed as a condition, and are now explicitly provided in section 48 subs. 1 StPO. The State has thepossibility to enforce this obligation through coercive procedural measures (section 51 StPO). On the basis of
this obligation which has been imposed by the law, a particular obligation is incumbent on the State to protect
the witness’ legal interests, above all of life, limb and certain assets, if these are placed at risk as a result of
the testimony.
It is important to make clear that there is a difference between witness protection (in its classicalsense) and witness support and assistance measures, although there might be measures which serve both
purposes. In Germany there exist a wide range of services to (victims-) witnesses regarding their assistance,
e.g. information rights, psychological assistance or assistance in obtaining compensation (section 406h StPO).
In the following the focus will be on witness protection measures only.
A. The Legal Basis of Witness Protection
The legislature has continually refined witness protection in the past two decades. The “Act on
Suppression of Illegal Drug Trafﬁcking and other Manifestations of Organised Crime”5 already entailed major
improvements in this ﬁeld. For instance, the possibility was created for the ﬁrst time to limit statements onplace of residence and identity and personal particulars when examining witnesses, depending on the degreeof endangerment, or to do without them altogether (section 68 StPO).

4 Art. 2 of the United Nations Convention Against Transnational Organized Crime; Annual European Union Organised Crime Situation
Report (6204/1/97 ENFOPOL 35 REV 2) GD H II.
5 cf. footnote 4.

― 21 ―

With the Act on the Federal Criminal Police Office (Bundeskriminalamtgesetz) 6, the legislature
introduced in 1997 a special empowerment provision of the Federal Criminal Police Office for witness
protection at national level.
The Witness Protection Act (Zeugenschutzgesetz) 7, which came into force on 1 December 1998,
provided with sections 58a, 168e, 247a and 255a StPO a statutory basis for the deployment of video
technology in examinations, as well as its subsequent use in the main hearing.
With the Act to Harmonise Witness Protection (Zeugenschutzharmonisierungsgesetz – ZSHG)8, whichcame into force on 31 December 2001, the legislature ﬁnally created a clear statutory basis for measures of
witness protection.
The culmination of legislative developments in witness protection for the time being is formed by theSecond Victims’ Rights Reform Act (2. Opferrechtsreformgesetz – 2. ORRG)9, which came into force on 1
October 2009, which in particular enhanced the rights of (victim) witnesses.
1. The Witness-Protection Provisions of the Code of Criminal ProcedureSigniﬁcance attaches in witness protection in criminal procedure ﬁrst and foremost to the possibility
not to have to state certain personal and address data, and moreover to the deployment of video technology.
(i)

The Protection of Address Data
Growing signiﬁcance attaches to the protection of witnesses’ privacy in criminal proceedings, giventhat many witness are afraid of giving their personal particulars when being examined. A witness isfundamentally obliged to state his/her ﬁrst and family name, birth name, age, position or trade and place ofresidence when being examined (section 68 subs. 1 StPO). The purpose of the provision is to avoid mistaken
identity; it is however also to create a reliable basis for evaluating credibility and to make it possible for thoseconcerned to obtain information. The obligation is then incumbent on the State to protect witnesses from theirdata becoming known beyond the degree that is necessary in criminal proceedings. It must however always
strike a balance between the necessary protection of witnesses’ rights of personality and the purposes of thecriminal proceedings, in particular taking account of the right of the accused to a fair trial10, of the degree ofendangerment of the witnesses and where appropriate of the nature of the data which are to be protected.
This is ensured in Germany in many instances by a graduated system of possibilities for conﬁdentiality
being provided for, depending on the degree of endangerment, which applies both to witness examination andthe bill of indictment, and to the documentation in the files. The Second Victims’ Rights Reform Act hasretained this graduated system, has further improved the coordination of the individual protection
mechanisms, and has also appropriately expanded them with regard to witnesses’ rights.
(a) Statement of the Witness’ Residential Address on Examination
Even before the Second Victims’ Rights Reform Act came into force, there were exceptions to theprinciple that certain information is to be provided (section 68 StPO). For instance, witnesses could bepermitted on examination in accordance with section 68 subs. 2 sentence 1 StPO to state their businessaddress or place of work or another address at which documents can be served, instead of their place ofresidence, if there is reason to fear that the witness or another person might be endangered by the witness
stating his/her place of residence. Such an endangerment may be feared for instance if an attack on thewitness or a third party has previously taken place or has been threatened, or if the endangerment emerges
Act on the Federal Criminal Police Ofﬁce and on Cooperation between the Federation and the Länder in Criminal Police Matters(Gesetz über das Bundeskriminalamt und die Zusammenarbeit des Bundes und der Länder in kriminalpolizeilichen
Angelegenheiten), Federal Law Gazette 1997 part I, p.1650.
7 Act on the Protection of Witnesses on Examination in Criminal Proceedings and to Improve Victim Protection (Gesetz zum Schutze
von Zeugen bei Vernehmungen im Strafverfahren und zur Verbesserung des Opferschutzes), Federal Law Gazette 1998 part I, p.820
8 Act to Harmonise the Protection of Endangered Witnesses (Gesetz zur Harmonisierung des Schutzes gefährdeter Zeugen), Federal
Law Gazette 2001 part I, p.3510.
9 Federal Law Gazette 2009 part I, p.2280.
10 Codiﬁed in Article 6 the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 in theversion of 17 May 2002 (Federal Law Gazette II 1054).
6― 22 ―

because of criminalistic indications, criminological experience or experience of life11.
This reduced statement of personal particulars in accordance with section 68 subs. 2 StPO was also
reﬂected in the investigation ﬁles, given that the provision applies not only to examination by a judge, but via
section 161a subs. 1 sentence 2 StPO also to examination by a public prosecutor.
In accordance with section 68 subs. 3 sentence 1 StPO, it was also possible for witnesses to bepermitted not to state personal particulars on examination if there was reason to fear that revealing the identity
or the place of residence or whereabouts of the witness would endanger the life, limb or liberty of the witness
or of another person. Documents establishing the witness’ identity are kept at the public prosecution ofﬁce
and are only included in the files when the danger has ceased (section 68 subs. 3 sentence 3 and subs. 4
StPO).
Since implementation of the Second Victims’ Rights Reform Act there is now a comprehensive list in
section 163 StPO to clarify that the provision contained in section 68 StPO is already to be adhered to by thepolice in the investigation proceedings.
Also with the aim in mind of witness protection, the right of the witness not to have to state their placeof residence in certain cases was additionally expanded to the required degree (section 68 subs. 2 and 3
StPO). This possibility now also exist if there is justiﬁed reason to fear that an unfair inﬂuence will be exerted
on the witness. Moreover, if there is a corresponding endangerment, the witness’ information regarding his/
her identity or place of residence may not be revealed in the file to the person potentially posing a risk,
including after conclusion of their examination (section 68 subs. 5 StPO). The measures described whichwere carried out in the protection of address data however relate not only to investigation proceedings, butalso to court proceedings.
(b) Statement of the Witness’ Residential Address in the Bill of Indictment
In the event of an endangerment (in accordance with section 68 subs. 1 sentence 1 and subs. 2
sentence 1 StPO), it was sufﬁcient to state in the bill of indictment the witness’ address at which documents
can be served (section 200 subs. 1 sentence 3 StPO). Corresponding to the measures that have been described,
in order to better consider all witnesses’ rights of personality (not only those of endangered witnesses), it has
now been clariﬁed by the Second Victims’ Rights Reform Act that the bill of indictment does not have tocontain a witness’ complete address (section 200 subs. 1 sentence 3 StPO) and in special cases even only his/her name (section 200 subs. 1 sentence 4 StPO).
Because it was previous practice in Germany to state (non-endangered) witnesses’ full address in thebill of indictment when they were named, this often led to the undesirable situation that the accused washence automatically aware of the addresses of all witnesses in each set of proceedings since the bill of
indictment is to be communicated to the indicted accused in accordance with section 201 StPO. It is however
not necessary in the vast majority of cases for the indicted accused to know the witnesses’ residential address.
Where this might nonetheless be necessary in individual cases in the interest of checking credibility, he/she
can be informed of the address where appropriate through inspecting the ﬁles.
Finally, when naming witnesses, their identity, place of residence or whereabouts in accordance withsection 68 subs. 3 StPO is not to be disclosed, only this fact is to be indicated in the bill of indictment (section
200 subs. 1 sentence 5 StPO).
(ii) Protection by means of the Provisions on Video Examination
Not only the abovementioned data protection provisions, but also provisions on the deployment ofvideo technology, may contribute towards effective witness protection in criminal proceedings. Firstly, thepossibility exists to examine witnesses separately, with simultaneous audio-visual transmission for otherparties to the proceedings (sections 168e and 247a StPO), whilst it is permissible to record witness
11. Meyer-Goßner, StPO, 53rd edition, 2010, section 68, margin number 12.

― 23 ―

examinations on an audio-visual medium – video recording – for the purpose of their subsequent use in themain hearing (sections 58a and 255a StPO). The provisions are not limited to specific fields of crime orcertain groups of witnesses.
(a) Simultaneous Audio-Visual Transmission
Section 168e StPO provides for the investigation proceedings that if there is an imminent risk ofserious detriment to the well-being of the witness, he/she may be examined by the judge such that the judge
carries out the examination separately from the other persons entitled to be present (in particular the accusedand his/her defence counsel). The examination is transmitted to them simultaneously by means of an audiovisual transmission. Additionally, this video examination by the judge may be recorded and used later in themain hearing, so that the witness is spared a confrontation with the indicted accused (section 168e sentence 4
StPO).
There is however always a requirement of a concrete risk to the well-being of the witness, the cause ofwhich must particularly lie in an examination in the presence of the persons entitled to be present.
For the main hearing, section 247a StPO provides for video examination of the witness such that thepresiding judge and the other parties to the proceedings do not leave the courtroom, and the witness is in
another place outside the courtroom, the examination being transmitted to the courtroom using a direct audiovisual link. The examination may take place in a separate room in the court building or in another place athome or abroad where the preconditions for audio-visual transmission are guaranteed. This is possible, ﬁrstly– as in section 168e StPO – if there is an imminent risk of serious detriment to the well-being of the witness.
It may however also be carried out if the personal appearance of the witness in the main hearing is opposedby a particular obstacle.
The testimony may also be recorded in the case of a video examination in the main hearing. In fact, it
should be recorded if there is a danger that the witness cannot be examined during a future main hearing (forinstance in an appeal proceeding) and if the recording is required in order to establish the truth. Whether thisis the case is to be decided by the court at its duty-bound discretion, albeit it follows from the manifestation asa directory provision that, should the statutory prerequisites apply, it is to be ordered as a rule.
(b) Video Recording
The recording of a witness examination on audio-visual media in the investigation proceedings isregulated by law in the shape of section 58a StPO. This recording may be played in the main hearing subject
to certain preconditions (cf. section 255a StPO in conjunction with sections 251 et seqq. StPO) – in particularwith the consent of the indicted accused and of his/her defence counsel, or if the witness cannot be examinedin the foreseeable future. A recording should be made if the examined witness is less than 18 years of age12 orif there is a fear that the witness cannot be examined during the main hearing and if the recording is requiredin order to establish the truth, section 58a subs. 1 No. 2 StPO; section 247a StPO.
(c) Possible Detriment to the Rights of the Accused
The implementation of video examination in the main hearing in accordance with section 247 StPO is
at the duty-bound discretion of the court. When exercising its discretion, the court must consider that theexamination of the witness in person in the courtroom (section 250 sentence 1 StPO) was regarded by thelegislature as being the standard case, and hence video examination, as an exception to this principle, iscontingent on preconditions subject to a narrow interpretation. Only if these prerequisites are met is there
latitude for a discretionary decision. A proper balance is to be struck here between the justiﬁed interest of the

12 This age limit was increased from 16 to 18 by the Second Victims’ Rights Reform Act, so that there is now greater latitude to spare
the witness an encounter with the accused by means of playing the recording. This new age limit also corresponds to the age limit ofmany international agreements on the protection of children and juveniles.

― 24 ―

witness (witness protection) on the one hand and the rights of the indicted accused, which also haveconstitutional status, to a fair trial on the other hand. In particular, the inalienable rights of the indictedaccused, in addition to the presumption of innocence, also include his/her right to a legal hearing and his/herright to ask questions. Furthermore, he/she also has a right to accelerated proceedings and at the same timecomprehensive clariﬁcation of the criminal offence. The indicted accused must have an effective possibility
to question a witness and to question his/her credibility and reliability. All this is at least made more difﬁcult
by video examination, if not actually prevented.
The principle of examination in person (section 250 StPO) is largely granted by simultaneoustransmission (section 247 sentence 3 StPO), since only the physical presence of the witness in the courtroom
is done without13. Having said that, the duty to investigate ex officio emerging from section 244 subs. 2
StPO14 is affected if direct communication between the parties to the proceedings, in particular between the
court and the witness, is not possible, but is ﬁltered through a technical medium. This may cause a major
detriment to the formation of judicial conviction. Also, spontaneous questions on the part of both the court
and of the indicted accused are made more difficult. Finally, the motivation to testify truthfully may be
reduced if there is no direct confrontation with the court and the parties to the proceedings.
(iii) The Undertaking of Confidentiality
In order to make it possible to verify the statement of a witness by consulting other evidence, the court
must on principle know the identity of the witness. Statements regarding the identity may therefore not berefused as a rule. A witness may however exceptionally be assured by the criminal prosecution authorities(public prosecution office or police) that his/her identity will be kept secret if there is a particularendangerment to the witness. This can be considered namely with serious crime, in particular organised
crime. The statement of the witness is then presented in the main hearing by the police ofﬁcer who examined
the witness. This approach is however very seldom taken in practice, especially since it is not binding for the
court proceedings and does not eliminate the court’s duty to ascertain the truth. Detailed guidelines for thisprocedure are provided in Annex D to the Guidelines for Criminal and Administrative Fines Proceedings15.
2. Witness Protection in accordance with the Act to Harmonise Witness Protection16
It is particularly important in proceedings related to criminal offences of organised crime to win overwitnesses who are willing to testify and to maintain their willingness to testify over the entire proceedings.
Criminal prosecution authorities and courts frequently and particularly rely here on witnesses who come fromamong the offenders and can provide valuable information particularly because of their high degree offamiliarisation with the planning of the offence and its commission. The willingness of a witness to testify iscontingent on guaranteeing comprehensive protection. This is not only a matter of protecting the witness him/
herself, but also his/her relatives and other persons close to him/her.
With the adoption of the Act to Harmonise Witness Protection in 2001, the legislature created astatutory basis for speciﬁc witness protection measures, and hence for greater legal security in this ﬁeld. The
legislature opted not to limit the area of application to the ﬁelds of crime “organised crime” and “terrorism”17.
Having said that, section 2 subs. 2 sentence 2 of the Act to Harmonise Witness Protection contains a special
proportionality clause according to which witness protection measures in accordance with the Act toHarmonise Witness Protection are ultimately only considered in cases of serious crime.
(i)

Scope and Competence in Application of the Act to Harmonise Witness Protection
Section 1 subs. 1 of the Act to Harmonise Witness Protection lists the prerequisites under which

13 cf. on this Fischer in JZ (JuristenZeitung) 1998, p.820.
14 Meyer-Goßner, StPO, 53rd edition, 2010, section 244, margin number 12.
15 Guidelines for Criminal and Administrative Fines Proceedings, Annex D I. (Use of informants and deployment of cooperating
witnesses in criminal prosecution).
16 cf. footnote 9.
17 The Draft of the Federal Council still provided for such a restriction. (Federal Council printed paper [BR-Dr.] 458/98).

― 25 ―

witness protection may be provided in criminal proceedings. The witness to be protected must be in danger
speciﬁcally because of his/her willingness to testify. An endangerment which is only abstract is not sufﬁcient.
The analysis of endangerment, which is carried out by the competent witness protection units, must reveal
factual indications that damage is likely to occur to the legal interests of the witness.
Admission to witness protection is contingent on it being impossible to research the facts, or to
identify the accused, or on this being made much more difﬁcult, without the statement of the person who is tobe protected. Less incisive measures therefore take priority.
The witness must have consented to the protection measures; he/she may therefore not be included ina witness protection programme against his/her will.
A person must be suited for the implementation of witness protection measures. The person to beprotected may for instance be unsuited if he/she makes false statements, fails to meet agreements or is unable
to do so, is not willing to maintain conﬁdentiality or commits criminal offences.
In accordance with section 1 subs. 2 of the Act to Harmonise Witness Protection, the Act also applies
to relatives of the witness or accused or to other persons close to him/her, given that dangers may also
threaten this group of individuals. Even if a witness or accused person were to be willing to testify,
suppressing their own endangerment, this is frequently questioned when the endangerment threatens persons
close to him/her.
In accordance with section 1 subs. 4 sentence 1 of the Act to Harmonise Witness Protection, witness
protection measures may be terminated if one of the preconditions mentioned above did not apply (from theoutset) or has subsequently ceased to apply. The termination of criminal proceedings by itself does not
however entail rescission of the witness protection measures if the endangerment continues to exist (section 1
subs. 4 sentence 1 of the Act to Harmonise Witness Protection)18.
(ii) The Witness Protection Unit, Section 2 of the Act to Harmonise Witness Protection
Special witness protection units have been set up both at the Federal Criminal Police Ofﬁce and in all
Federal Länder. These special units are as a rule separated from the investigative units, which is considerednecessary for reasons of police tactics.
Inclusion in a witness protection programme is as a rule suggested by the individual criminal
prosecution authority/public prosecution ofﬁce dealing with the investigation proceedings; only then does the
special witness protection unit start work, which then takes a formal decision on inclusion in the witness
protection programme.
In accordance with section 2 subs. 2 of the Act to Harmonise Witness Protection, there is nofundamental legal right to the commencement of protection measures by the witness protection unit. Rather,
the decision on the commencement, nature, scope and termination of such measures is in any case contingent
on an examination of proportionality in which in particular the gravity of the offence, the degree of theendangerment, the rights of the accused against whom the testimony is to be given, and the impact of witness
protection, are to be taken into account.
Accordingly, all witness protection measures taken, such as the issuance of cover documents, ﬁnancial
benefits or the termination of witness protection must be comprehensible at any time, thus obliging thewitness protection units to provide seamless documentation. This information, which is subject to
conﬁdentiality, is kept in ﬁles in the witness protection units and does not constitute a part of the investigationﬁle. The ﬁles are however to be made available to the public prosecution ofﬁce for criminal proceedings onrequest. Officials of the public prosecution office and witness protection units are also obliged to provide
information on witness protection in criminal proceedings in accordance with general principles. In

18 If measures in accordance with the Act to Harmonise Witness Protection can no longer be considered because the preconditions do
not apply (or no longer apply), but the endangerment continues to apply to major legal interests of the individual in question, thecompetent police authorities must ensure their protection by taking measures under police law. In this case, the legal basis changes
under which protection is granted, and possibly also the methods and the police ofﬁcers in persona, but protection continues to beguaranteed.

― 26 ―

accordance with section 54 StPO, they however require consent to testimony, which is to be granted, but may
however also be restricted where appropriate, taking account of the purposes of witness protection.
The judicial control of the proceedings exercised by the public prosecution ofﬁce remains unaffected(section 2 subs. 4 of the Act to Harmonise Witness Protection). Until the ﬁnal conclusion of a set of criminal
proceedings, all important decisions are to be taken subject to agreement between the public prosecutionofﬁce and the witness protection unit. Also, once the proceedings have been concluded, the public prosecution
office is to be provided with information because it may have information, for instance from follow-up
proceedings, which is signiﬁcant to the decision on the termination of witness protection.
(iii) Confidentiality, Obligation in accordance with Section 3 and Section 10 of the Act to Harmonise Witness
Protection
The solution of the tension between properly safeguarding the necessary conﬁdentiality of witness
protection measures, on the one hand, and the right to a fair trial on the other, is served by sections 3 and 10of the Act to Harmonise Witness Protection. Here, the safeguarding of effective witness protection iscontingent inter alia on the confidentiality of the witness protection measures. Office-holders are alreadyobliged to observe conﬁdentiality in accordance with provisions of service law; unauthorised disclosure of
information is subject to criminal punishment in accordance with section 353b subs. 1 No. 1 of the Criminal
Code (Strafgesetzbuch – StGB)19 – up to five years’ imprisonment or a fine. In the main, the provision ofsection 3 of the Act to Harmonise Witness Protection hence serves to safeguard confidentiality by otherpersons (ﬁrstly, the persons to be protected themselves, and secondly those private individuals who can beclaimed against for measures in accordance with the Act to Harmonise Witness Protection), who inaccordance with the Obligations Act (Verpflichtungsgesetz)20 can be “formally obliged to carry out their
obligations in a conscientious manner”. In this respect, these individuals are equated to ofﬁce-holders, so thatthey are threatened in the event of violating this obligation with criminal prosecution in accordance withsection 353b subs. 1 No. 2 StGB. The person to be protected will need to be placed under an obligation as arule since the willingness to be placed under an obligation (with the consequences of criminal prosecution in
the event of a violation), is a major criterion for the suitability of a person who is to be protected.
Section 10 of the Act to Harmonise Witness Protection, by contrast, regulates obligations to provide
information in formal judicial proceedings, that is before courts and committees of enquiry. It must be ensured
in these proceedings too that the personal particulars under which a person who is to be protected lives, aswell as his/her current whereabouts, are not disclosed and hence their endangerment increased. Section 10
subs. 3 of the Act to Harmonise Witness Protection clarifies for criminal proceedings that the provisions
contained in sections 68 and 110b subs. 3 StPO remain, that is that the accused and the defence do not have toaccept any further restrictions. For all other court proceedings, a person enjoying protection, in derogationfrom the provisions of the respective rules of procedure, is entitled to make a statement on the person only
regarding a former identity, and may refuse to give information which allows conclusions to be drawn as tothe current personal particulars and place of residence and whereabouts.
(iv) Utilisation of Personal Data, Section 4 of the Act to Harmonise Witness Protection
Section 4 subs. 1 of the Act to Harmonise Witness Protection determines as one of the central
provisions of the Act that the witness protection units may refuse to provide any information to public andnon-public agencies apart from the public prosecution ofﬁces regarding personal data of the person who is tobe protected, where this is necessary for his/her protection.
Section 4 subs. 2 of the Act to Harmonise Witness Protection contains a blanket clause granting public

19 Criminal Code in the version of the promulgation of 13 November 1998 (Federal Law Gazette. I p.3322), most recently amended by
Article 3 of the Act of 2 October 2009 (Federal Law Gazette. I p.3214).
20 section 2 subs. 2 No. 2 of the Act on the formal Obligation of Persons who are not Tenured Civil Servants (Gesetz über die förmliche
Verpflichtung nicht beamteter Personen) of 2 March 1974 (Federal Law Gazette Part I, 469, 547).

― 27 ―

agencies the power, on request by the witness protection units, to block data or not to forward them. The
requested authorities must comply with the request of the witness protection units unless there are prevailingthird-party interests which are eligible for protection or such interests of the general public. The generalclause applies to public ﬁles and registers, such as the registration, identity card, passport, driving licence andvehicle registers.
The further blanket clause contained in section 4 subs. 3 of the Act to Harmonise Witness Protection
obliges agencies outside the public domain to comply with the request of the witness protection units to block
the transmission of data. This provision is necessary because considerable amounts of data processing are also
carried out in the private domain, for instance in banks, insurance companies and utilities. Furthermore,
public and non-public agencies must ensure for the area of their internal data processing that witness
protection is not impaired (section 4 subs. 4 of the Act to Harmonise Witness Protection). The reference tosections 161 and 161a StPO contained in section 4 subs. 5 of the Act to Harmonise Witness Protection makes
it clear that these restrictions do not apply in relations to the public prosecution office exercising judicial
control of the proceedings. The recognition and prevention of spying attempts by third parties is served by theprovision that public and non-public agencies must notify each request to release blocked data to the witness
protection unit (section 4 subs. 6 of the Act to Harmonise Witness Protection).
(v) Temporary Cover, Section 5 of the Act to Harmonise Witness Protection
Section 5 of the Act to Harmonise Witness Protection regulates the structure of temporary covers.
Persons who are to be protected must be equipped with documents by means of which a ﬁctitious life can betraced, which is for instance necessary to take up work or to register children for school or to change schools.
As a blanket clause, section 5 subs. 1 of the Act to Harmonise Witness Protection clariﬁes that public agencies
are empowered to produce and alter cover documents at the request of the witness protection units and toprocess the altered data. This refers for instance to identity cards, driving licences, wage tax cards orcertiﬁcates.
The blanket clause contained in section 5 subs. 2 of the Act to Harmonise Witness Protection obliges
non-public agencies to comply with the request of the witness protection units to issue cover documents. Thisis significant because identity cards, as well as documentation of entitlements and performance, are also
drawn up in the non-public sphere to document life events.
In accordance with section 5 subs. 3 of the Act to Harmonise Witness Protection, persons to beprotected may take part in legal transactions under their cover, for instance by renting apartments or holdingbank accounts.
(vi) Benefits from the Witness Protection Unit, Section 8 of the Act to Harmonise Witness Protection
With the provision on beneﬁts from the witness protection units paid to the persons to be protected,
section 8 of the Act to Harmonise Witness Protection touches on one of the most controversial topics in theﬁeld of witness protection, given that it relates to the tension between effective provision of protection for
endangered individuals on the one hand and the right of each accused person to put up defence and to a fairtrial on the other.
Section 8 subs. 1 of the Act to Harmonise Witness Protection makes it possible to provide temporary
economic support by the witness protection units unless in individual cases the persons to be protected canuse their own resources. On principle, these persons must continue to support themselves. They must haverecourse to their own savings where necessary.
The fundamental prohibition of economic advantage is one of the fundamental requirements of the
Act to Harmonise Witness Protection. Potential witnesses are not to be able to hope to enjoy material
advantages through inclusion in witness protection, such as a larger home or higher monthly payments. This
provision details the legal concept from section 136a StPO, in accordance with which inter alia the promise of― 28 ―

advantages not provided for by the law is prohibited, including for witness protection.
A strict standard is to be applied to the nature and scope of possible beneﬁts which is orientated in linewith the weighing up criteria of section 2 of the Act to Harmonise Witness Protection. Hence, the accusation
is prevented which would otherwise be possible that the testimony of the person who is to be protected was,so to speak, bought with material advantages.
Section 8 sentence 2 of the Act to Harmonise Witness Protection makes it clear that beneﬁts from thewitness protection units which a person to be protected has deceptively and unfairly obtained, such as byknowingly making untrue statements about the preconditions for witness protection, can be demanded back.
These prerequisites will not normally apply if the content of a statement is simply corrected.
3. Impairment of the Defence through Measures in accordance with the Act to Harmonise Witness
Protection?
The provisions of the Act to Harmonise Witness Protection offer good possibilities to achieve effective
protection of an endangered witness. Disadvantages may however be caused to the accused and the indictedaccused with regard to an effective defence as a result of measures provided for in the Act to Harmonise
Witness Protection. Since inclusion in a witness protection programme as a rule is proposed by the respective
criminal prosecution authority dealing with the investigation proceedings (section 2 subs. 2 sentence 1 of the
Act to Harmonise Witness Protection, see above), case constellations are conceivable in which the protectionof the witness is not primarily focussed on, but procedural tactical considerations of the criminal prosecution
authorities also at least play a role21. Instead of strengthening the ascertainment of the truth, witnesses who
are willing to testify may also be influenced in particular by the prospect of being included in a witness
protection programme and nicen up their testimony so as to make themselves more important for the criminal
prosecution authorities than they actually are. This may encourage false testimony. It is also possible for thewitness to be protected to portray the endangerment potential more dramatically than it is in reality, given that
inclusion in a witness protection programme is associated with measures which might be understood toconstitute not inconsiderable advantages22.
There is no empirical proof of these fears, and these would probably also be difﬁcult to establish, but
because of the comprehensible motivation of the witness they cannot however be fully ruled out. It is howeverﬁrst and foremost a matter for those who deal with inclusion in the witness protection programme to recognisesuch tendencies and nip them in the bud. The judge in the main hearing must however also be aware that he/she might need to pay particular attention to the motivation of the witness, and concomitantly to the value of
his/her testimony.
B. Witness Protection as an Obligation incumbent on Employers: Federal Constitutional Court’s“Whistleblower” Ruling
The “ whistleblower ”-problematic does not refer to witness protection in its classical sense as“whistleblowers” do not necessarily become witnesses in a criminal proceeding. In general they alert to thecompetent authorities important information on wrongful acts in private companies or even in the public
sector. This is more an aspect of civil-/labour-law. In the “Whistleblower” ruling of the German Federal
Constitutional Court it has been pointed out that in addition to the state’s obligation to protect witnesses, (civil
and public-law) employers also have an obligation in individual cases to protect a witness who has provided
information on irregularities within the company to the criminal prosecution authorities, in criminal
proceedings against civil law sanctions or other disadvantages with which they may be threatened during or
after the conclusion of criminal proceedings. This is not witness protection in the classical sense; nonetheless,this area is highly signiﬁcant since it repeatedly occurs in current political discussions in Germany.
21 More on this: Ulrich Eisenberg, Zeugenschutzprogramme und Wahrheitsermittlung im Strafprozess, in Festschrift für Gerhard Fezer,
p. 197 et seqq.
22 Such as creation of a cover (section 5 subs. 1-3 of the Act to Harmonise Witness Protection) and material beneﬁts (section 8 sentence
1 of the Act to Harmonise Witness Protection).

― 29 ―

The Federal Constitutional Court found in its “Whistleblower” ruling of 2 July 200123 that testimonyof an employee in the investigation proceedings against his/her employer did not necessarily entitle it toterminate employment. Particularly the obligation to testify was said to be a general civic duty. It was said not
to be compatible with this duty in a state based on the rule of law for those who complied with it to suffer
disadvantages under civil law. The Court found that this was the only way to satisfy the constitutional duty of
the State to guarantee a functioning administration of justice in the public interest.
The case-law of the labour courts which has been handed down since the “whistleblower” ruling has
not been able to prevent non-uniform and partly contradictory handling of this prohibition of discrimination
pronounced by the Federal Constitutional Court. The legislature has hence been planning for quite some timeto include a “whistleblower section” in the Civil Code (Bürgerliches Gesetzbuch) to eliminate the legal andfactual uncertainties in this ﬁeld24. However, so far without any results.

III. EFFECTIVE MEASURES TO ENCOURAGE COOPERATION OF
WITNESSES OF ORGANISED CRIME IN GERMANY WITH A FOCUS ON
THE “CROWN WITNESS” SYSTEM
Before the crown witness system in Germany is explained in more detail, it is important to know thatthese regulations do only apply to persons who themselves have committed a criminal offence and who aresubject to mitigation principles due to the fact that they are willing to cooperate with the judicial authorities.
A. The Crown Witness Arrangements in Germany prior to the Entry into Force of the Act Amending
the Criminal Code25
The ﬁgure of the crown witness was fundamentally alien to German criminal procedure law for a longtime. A crown witness arrangement was included in criminal law, including those criminal provisions which
are not contained in the Criminal Code, for the first time in 1981 with section 31 of the Narcotics Act(Betäubungsmittelgesetz)26. This provides that the court may mitigate the sentence, or can refrain from
imposing punishment, if the offender・has made a major contribution by voluntarily revealing his/her knowledge to discovering the offence
over and above his/her contribution to it, or・voluntarily reveals his/her knowledge to a unit in such good time that considerable criminal offences inaccordance with the Narcotics Act with regard to which he/she has become aware of the planning canstill be prevented.
Further “ crown witness arrangements ” for specific criminal offences are provided for by theapplicable law in the ﬁeld of organised crime (sections 129 subs. 6 and 261 subs. 9 StGB), as well as in theﬁeld of terrorism (section 129a subs. 7 StGB).
Controversial discussions have been going on in Germany for decades and are continuing on the
introduction of a crown witness arrangement covering all crimes 27. This is partly because crown witness
arrangements are in a certain state of tension with the principle of mandatory prosecution and the guilt
principle: A criminal offender may buy him/herself free of criminal prosecution by means of denunciation.
The punishment distances itself from its function of being a fair compensation for guilt28. Art. 3 of the Basic

23 Order of the Federal Constitutional Court of 2 July 2001, ref. 1 BvR 2049/00.
24 German Federal Parliament, Committee on Food, Agriculture and Consumer Protection: Proposal for the statutory establishment of
informant protection for employees in the Civil Code of 30 April 2008. (Committee printed paper 16(10)849 – This proposal did not
ﬁnd political favour.)25 Act Amending the Criminal Code – Assessment of Punishment with Assistance in Solving and Preventing Crimes (Gesetz zurÄnderung des StGB – Strafzumessung bei Aufklärungs- und Präventionshilfe), Federal Law Gazette. Part I 2009, 2288.
26 Act on Trafﬁcking in Narcotics (Gesetz über den Verkehr mit Betäubungsmitteln), of 28 July 1981 (Federal Law Gazette. I, 681).

― 30 ―

Law (Grundgesetz) (the principle of equality) is also affected given that those who are entangled in a criminal
environment can obtain advantages more easily than a person committing a single crime, who cannot
denounce anyone. What is more, the criminal prosecution authorities place themselves under suspicion ofnegotiating with crime.
German legal policy has also repeatedly tackled the question in recent years of the degree to which thestructure of crown witness arrangements should be improved or expanded in the law, particularly in view ofthe fact that the threat not only of organised crime, but in recent years especially also of terrorist attacks,
appeared to grow29.
The discussions in this respect touched on the same questions again and again: Should crown witness
arrangements be regulated for speciﬁc crimes in the individual elements of the offences themselves (as in theabovementioned sections 129 and 129a StGB), or should a multi-crime provision be introduced? Should theadvantages granted only be considered if the testimony of the crown witness relates to offences in which he/she was personally involved, or should they also apply if he/she can provide information regarding offences
which are unrelated to the offence of which he/she is being accused? And, ﬁnally, also the question of whether
one should adopt a US system of “corroboration”, according to which no conviction may be handed downsolely on the basis of the testimony of a crown witness.
B. The So-called “Big Crown Witness Arrangement” adopted as Law
With the “Act Amending the Criminal Code - Assessment of Punishment with Assistance in Solving
and Preventing Crimes”, which came into force on 1 September 200930, a multi-crime “big” crown witness
arrangement was opted for, whilst retaining the provisions contained in sections 31 of the Narcotics Act andsections 129 and 129a StGB. A provision was included in the Criminal Code31 with which all offenders ofparticularly serious criminal offences are to be covered if they make a major contribution by voluntarily
disclosing their knowledge towards solving or preventing criminal offences, including those in which they
were not personally involved (“multi-crime” application). It was particularly pointed out as a reason for thenecessity of such a broad crown witness arrangement that “there are considerable evidentiary problems whenit comes to crimes from the area of organised crime and terrorism” and that it was hence necessary to provide
adequate and suitable tools to offer an incentive to offenders who might be willing to cooperate in solving
crimes and to assist in their prevention32.
As to the crimes for which assistance in solving and preventing crimes is to be provided, the newprovision is linked to the lists of criminal offences contained in section 100a StPO. These are in particularcriminal offences which as a rule are committed in connection with organised crime.
The legal consequences of assistance in solving crimes within the meaning of section 46b StGB are
placed at the discretion of the courts: In accordance with section 49 subs. 1 StGB they can mitigate sentence– including life imprisonment – or refrain from imposing sentence if the offence is only threatened with timelimited imprisonment and the offender has not incurred a prison sentence of more than three years. The
discretion of the court in this term is guided by section 46b subsection 2 of the Criminal Code which statesthat the court shall have particular regard to the nature and scope of the disclosed facts and their relevance tothe discovery or prevention of the offence, the time of disclosure, the degree of support given to theprosecuting authorities by the offender and the gravity of the offence to which his disclosure relates, as wellas the relationship of the circumstances mentioned before to the gravity of the offence committed by and the27 The so-called Crown Witness Act, promulgated on 16 June 1989 (Federal Law Gazette. I 1989, 1059), on which – having been
expanded to include the prosecution of (other) organised crime – a sunset clause was ultimately imposed up to 31 December 1999,
and which was then no longer extended, was of little signiﬁcance in practice.
28 Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts) 45, 259.
29 On the development of the legislative procedure cf. König in Neue Juristische Wochenschrift (NJW) 2009, 2481.
30 cf. footnote 26.
31 Section 46b of the Criminal Code “Assistance in solving or preventing serious criminal offences”.
32 Federal Parliament printed paper 16/6268, p. 1 et seq.

― 31 ―

degree of guilt of the offender.
In order to avoid any misuse of the concessions made possible under section 46b of the Criminal
Code, a time limit is stipulated for the submission of information as a witness for the prosecution.
Mitigation of punishment or dispensing with punishment are excluded if the perpetrator discloses theinformation at his disposal after the decision has been issued to open the main proceedings against him(section 207 of the Code of Criminal Procedure). This cut off point for considering submissions by theperpetrator is designed to enable the courts to examine the statements of witnesses for the prosecution as totheir veracity before judgment is handed down. Should the perpetrator provide information relevant to theinvestigation during interlocutory proceedings (section 199 et seqq. of the Code of Criminal Procedure), thecourt may have these examined before the decision is taken to open the main proceedings, and send the ﬁlesto the public prosecution ofﬁce for further investigation if necessary.
However, even if the perpetrator contributes to discovery or prevention only during the course of themain proceedings (thus excluding the possibility of applying section 46b of the Criminal Code), there is thepossibility of honouring this during sentencing in accordance with section 46 subsection 2 of the Criminal
Code.
It is not yet possible to say with certainty whether the new Act fulfils its purpose; there are no
authoritative ﬁgures on this. The Coalition Agreement of the current government however provides in turn tostructure the crown witness arrangement in such a way that the possibility to mitigate punishment may only
be opened up if the offender’s disclosure is linked to with his/her own criminal offence33.

IV. WITNESS PROTECTION AT EU LEVEL
Witness protection is not only of national interest; this topic is also becoming more and more thesubject of debate in the cross-border domain. Considerations to regulate witness protection EU-wide havebeen in existence for several years. It was suggested back in 1997 in Recommendation 16 of the “Action
Programme on the Prevention and Fight against Organised Crime”34 to examine the needs of protection of
witnesses and persons who collaborate in the action of justice. The Council Declaration of 25 March 200435
on combating terrorism and the Hague Action Plan36 also refer to a proposal on the protection of witnesses
and collaborators.
The European Commission in particular has also been calling for a long time for the introduction of
obligatory minimum standards for witness protection at European level; to this end, it presented already in1996 a “Resolution on individuals who cooperate with the judicial process in the fight against organised
crime”37. Furthermore, a Commission Working Document on 13 November 2007 on the feasibility of EU
legislation in the area of protection of witnesses and collaborators with justice was presented38. This document
provides an overview of the state of legislation and the general procedure to be followed at national, European
and international levels; it furthermore contains an analysis of the problems, goals and possible political
options.
But not only the European Commission, also the Council of Europe has made big efforts when it
comes to witness protection. Especially the “Recommendation concerning intimidation of witnesses and theright of the defence”39 and the “Recommendation on the protection on witnesses and collaborators of

33 “Growth, Education, Unity": The coalition agreement between the CDU, CSU and FDP for the 17th legislative period, Nos. 4945 etseqq. (http://www.cdu.de/doc/pdfc/091215-koalitionsvertrag-2009-2013-englisch.pdf).
34 Ofﬁcial Journal of the European Union C 251 of 15 August 1997.
35 In English at: http://www.ena.lu/declaration_combating_terrorism_extract_concerning_establishment_position_coordinator_brussels_march_2004-020007089.html
36 Ofﬁcial Journal of the European Union C 65/120 of 17 March 2006 - COM(2005) 184 ﬁnal.
37 Ofﬁcial Journal C 010, 11/01/1997, p. 0001-0002.
38 Commission of the European Communities, Brussels, 13 November 2007 - COM(2007) 693 ﬁnal.

― 32 ―

justice”40 provide for speciﬁc guidance in the ﬁeld of witness protection.
Therefore, it has been shown in recent years that, on the one hand, there has been progress in the ﬁeldof EU-wide cooperation; for instance both the Council Framework Decision on combating terrorism41 and theCouncil Framework Decision on the standing of victims in criminal proceedings42 offer possibilities toalleviate punishment in exchange for information and protection rights of (victim) witnesses. Most EU
Member States also have a witness protection regulation either in a separate statute or in their Code of
Criminal Procedure43. These as a rule contain deﬁnitions of terms (protected witness, anonymous witness,
person collaborating with the judiciary), procedural (special precautions in the proceedings, alternative
procedures for testimony), as well as non-procedural measures (physical protection, change of place ofresidence, cover identity).
However, there are also differences: Some countries consider witness protection to be primarily amatter for the police, whilst others allot a primary role to the judiciary and the ministries. The countries also
differ widely in the manner of the measures with which witnesses’ collaboration is to be made easier. In somecases different legal traditions and contexts also have a role to play. These differences show that, all in all, aframework for binding minimum standards is not in place.
One can however gather from practitioners that the necessary protection can be provided in most casesby means of bilateral agreements which – where necessary – are concluded on an ad hoc basis, as well as
through an increased informal exchange of experience and information, as well as cooperation. Those
practitioners often give the opinion that there is no need for an EU-wide regulation on minimum standards inthis ﬁeld and that such a regulation would not have any added value.

V. STATISTICAL INFORMATION
A. On Witness Protection Cases
It is difficult to obtain reliable figures on witness protection measures and programmes in that the
responsible authorities are unwilling to reveal certain information because of the priority of the protection andconfidentiality of witness protection measures. This is to prevent amongst other things interested groups
obtaining a picture of the speciﬁc means and methods with which witness protection is provided by collating
information in a mosaic-like manner.
The Federal Criminal Police Ofﬁce has released the following ﬁgures from 2006 for publication:
・Numbers of cases:
witness protection cases 2006
330
carried over from 2005
266
new cases
64
completed cases
55
・Fields of crime:
organised crime262
national security crimes
10
other serious crime
58
・Protected witnesses: witnesses (total)
330
male
229
female101
nationality German
154
nationality not German
176
others involved
328

39
40
41
42
43

Council Recommendation No. R (97) 13 as of 10 September 1997.
Council Recommendation No. R (2005) 9 as of 20 April 2005.
Ofﬁcial Journal of the European Union L 164 of 22 June 2002, 3 Article 6.
Ofﬁcial Journal of the European Union L 82 of 22 March 2001, 1 Article 8.
A separate Witness Protection Act exists in 18 EU Member States; 9 EU Member States do not have such a law (these include
Denmark, Finland, France, Greece, Luxembourg, the Netherlands, Austria, Spain and Cyprus).

― 33 ―

For the above reasons, virtually no information is also available when it comes to the question of thecost and stafﬁng needs in the context of witness protection. According to unveriﬁable estimates, an average ofsix to eight witness protection ofﬁcers per witness protection unit in Germany appears to be sufﬁcient. Special
response units, mobile response units, or also investigation groups, are also deployed in some cases, each ofwhich is independent of the witness protection unit in terms of stafﬁng.
Taking a look at the budget plans of the individual Federal Länder is also no more informative since
the funds officially entered for the purposes of witness protection frequently do not reflect the actual
circumstances (for instance because financial resources used for witness protection are “hidden” in otheritems of the budget plan in order not to permit conclusions to be drawn here either).
B. On the Impact of the Crown Witness Arrangements in Germany
One can observe that the crown witness arrangement on terrorism, which was not extended beyond
1999, was applied with particular success in the cases of former RAF (Rote Armee Fraktion) terrorists and in
the exposure and prosecution of the PKK [Kurdistan Workers ’ Party]. There are also several sets ofproceedings in which the arrangement which was brought into the ﬁeld of organised crime made it possible tosolve cases.
In terrorist crime committed by foreigners, and when it comes to trials of members of the PKK in
particular, crown witness statements have made it possible to indict senior PKK cadres and made a major
contribution towards their conviction, in some instances sentencing them to long prison terms. The lion’sshare of these indictments could presumably never have been laid without the contribution towards detection
made by “crown witnesses”. The successes in investigation at that time made it possible not only to expose
the structures of the PKK; they are also likely to have made a major contribution towards the PKK’s decision
to cease violent terrorist activities in Germany. In terms of German terrorism, the crown witness arrangement
was applied to former RAF members who had gone into hiding in the GDR and who were taken into custody
after uniﬁcation. Their testimony made a major contribution towards solving crimes from the seventies. It
remains to be seen whether the “big crown witness arrangement”, which has now been adopted as law44, willlead to comparable successes in investigation.
In the criminal law on narcotics, the “crown witness arrangement”, which has been in existence since1982 (section 31 of the Narcotics Act), has been well received by practitioners. It was already applied in morethan 2,300 cases in the few years subsequent to its entry into force, namely from 1985 to 198745. According topractitioners, the regulation led to considerable successes in investigation, particularly in the ﬁght againstorganised narcotics-related crime.

VI. CONCLUSION
The constitutional system of the German Basic Law obliges the state agencies to also consider theinterests of witnesses in criminal proceedings. The legislature is in this regard faced by a challenge to achieve
optimum protection of witnesses without in doing so impairing the justified interests of the accused in a
defence. Measures to protect witnesses must be compatible in general terms with the purposes of criminal
proceedings, given that the state bodies are primarily obliged to solve crimes and to ﬁnd the guilt or innocenceof an accused person in a fair trial based on the rule of law. Under this premise, an attempt should be made toensure that the measures have as concrete an impact as possible: Witnesses of criminal offences primarilyneed the best possible protection in practice.
In the ﬁeld of witness protection within criminal procedure, the legislature once more took a major

44 cf. footnote 26.
45 Körner, Kommentar zum Betäubungsmittelgesetz, Arzneimittelgesetz; 6th ed. 2007: section 31 marginal no. 8.

― 34 ―

step towards improving this protection in 2009 with the Second Victims’ Rights Reform Act.
It is possible to state for the period prior to this that the legislative activities to improve witness
protection in Germany took a major step forward with the adoption of the Act to Harmonise Witness
Protection. The discussion on stepping up the ﬁght against organised crime, which started in the mid-eighties,
brought about improvements in witness protection in a total of three steps: First of all, with the Act on
Suppression of Illegal Drug Trafficking and other Manifestations of Organised Crime from 1992, witness
protection in criminal procedure was considerably improved by enabling endangered witnesses when
examined to refrain from stating their personal details or place of residence, or to limit the information
provided. The Witness Protection Act from 1998 led especially to a statutory provision of the deployment ofvideo technology in the Code of Criminal Procedure. Finally, the Act to Harmonise Witness Protection placed
witness protection by the police, which has a long tradition, on a statutory footing, and hence closed aloophole in the law to combat particularly serious manifestations of crime. It can be regarded as a slight
blemish that it has not been possible to integrate the provisions of the Act to Harmonise the Protection ofEndangered Witnesses in the Code of Criminal Procedure. However, this reflects the fact that witness
protection lies in the grey area between risk aversion and criminal prosecution, and that at least when it comesto police witness protection the two aspects cannot be separated from one another.
Through its “whistleblower” ruling in 2001, the Federal Constitutional Court made it clear thatstatements of an employee in the investigation proceedings against his/her employer do not necessarily entitle
it to terminate employment if the witness was merely carrying out his/her general civic duty.
When it comes to the harmonisation of witness protection at EU level, it can be found that on the one
hand there are many efforts to establish joint minimum standards, but that because of the highly-differing
witness protection systems which the EU Member States have implemented nationally, there is no common
consensus on how this has to take place.

― 35 ―INSIDERS AS COOPERATING WITNESSES:
OVERCOMING FEAR AND OFFERING HOPE
Robert E. Courtney III＊I. THE PROBLEM: CRIMINAL CONSPIRACIES AND A CODE OF SILENCE
Most nations and international organizations today recognize that criminal conspiracies pose greater
threats to society than the actions of individuals. We have only to scan the headlines of any major newspaper
in any country to see examples of criminal organizations and their impact on our nations. From violent
organizations like Italian Mafias and drug cartels, to private armies of entrenched political groups indeveloping countries, to smaller, but insidious conspiracies that corrupt public ofﬁcials, organized criminal
activity has become a fact of modern life. Almost 50 years ago the United States Supreme Court summarized
the danger of criminal conspiracies as follows:“[C]ollective criminal agreement--partnership in crime--presents a greater potential threat to the
public than individual delicts. Concerted action both increases the likelihood that the criminal object
will be successfully attained and decreases the probability that the individuals involved will departfrom their path of criminality. Group association for criminal purposes often… makes possible theattainment of ends more complex than those which one criminal could accomplish. Nor is the dangerof a conspiratorial group limited to the particular end toward which it has embarked. Combination incrime makes more likely the commission of crimes unrelated to the original purpose for which thegroup was formed. In sum, the danger which a conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise has embarked.”1
The impact of these criminal organizations has resulted in increasing international cooperation and theadoption of international agreements such as the UN Convention Against Transnational Crime (UNTOC)2 andthe UN Convention Against Corruption (UNCAC).3 Such Conventions recognize that if left unchallenged bylaw enforcement, criminal organizations pose signiﬁcant dangers to the foundations of our very institutions ofgovernment.
Standing in opposition to modern criminal conspiracies are the law enforcement systems of ourindividual countries. As we all know, because of our strong commitment to due process and the rule of law,
we require formal evidence be presented in court before someone can be convicted of a crime. It is theexperience of the United States that without witness testimony from “insiders” to entrenched criminalorganizations, there is little likelihood of convicting the leadership. But the difficulties in obtaining thewitnesses needed to convict the leaders of criminal conspiracies can be daunting.
＊United States Department of Justice Attaché, U.S. Embassy, Manila, Philippines.
1 Callanan v. U.S., 364 U.S. 587, 593-594 (1961).
2 In the Foreword to the UNTOC, UN Secretary General Koﬁ-Annan described the threats to civil society by criminal conspiracies inthese words: “Arrayed against these constructive forces, however, in ever greater numbers and with ever stronger weapons, are theforces of what I call “uncivil society”. They are terrorists, criminals, drug dealers, trafﬁckers in people and others who undo the goodworks of civil society. They take advantage of the open borders, free markets and technological advances that bring so many beneﬁts
to the world’s people. They thrive in countries with weak institutions, and they show no scruple about resorting to intimidation orviolence. Their ruthlessness is the very antithesis of all we regard as civil. They are powerful, representing entrenched interests andthe clout of a global enterprise worth billions of dollars, but they are not invincible.”
3 The preamble to UNCAC describes some of the dangers posed by ofﬁcial corruption as the reason for member states joining UNCAC
in these words: “concerned ...about the links between corruption and other forms of crime, in particular organized crime andeconomic crime, including money-laundering, Concerned further about cases of corruption that involve vast quantities of assets,
which may constitute a substantial proportion of the resources of States, and that threaten the political stability and sustainable
development of those States, Convinced that corruption is no longer a local matter but a transnational phenomenon that affects all
societies and economies, making international cooperation to prevent and control it essential...[member states have acceded to
UNCAC].”― 36 ―

The leaders of organizations insulate themselves from criminal prosecution by passing orders throughunderlings; the criminal bosses often never personally “get their hands dirty” in the commission of criminal
acts by their syndicate; and the leaders often use violence and intimidation to prevent witnesses fromtestifying. The resulting fears of the consequences that will follow if they cooperate with law enforcement
stand in the way of obtaining the critical testimony of “insiders.” Therefore, effective responses to the threatsof criminal organizations require special, coordinated tools that allow law enforcement ofﬁcers to obtain thetestimony needed to break the conspiracies and convict the leaders.

II. THE FEARS: VIOLENCE AND SOCIETY’S PUNISHMENT
The fear that deters insiders from giving testimony is twofold. First, they fear violence and retaliationfrom their fellow conspirators for becoming government witnesses. Second, they fear the punishment society
will inﬂict if they admit their participation in the criminal conspiracy they are asked to unmask. Criminalorganizations play on and reinforce these fears to deter cooperation with law enforcement by their members.
Examples of fearsome violence against those who become government witnesses are legion. One
drawn from our experience involves the murder of a government witness’ brother early on the morning he
was scheduled to testify against members of the La Cosa Nostra (LCN). Another involves the arson murder ofﬁve female, family members of a witness against a violent drug organization; murders arranged by the drugorganization’s leader from jail. 4 Each country represented at this conference can share its own experienceswith such violence, including violence in corruption cases.
Fear of prosecution, the second fear deterring would-be cooperators, has been “institutionalized” by
the United States’ Italian Maﬁa, known as La Cosa Nostra (LCN). As a prerequisite to full “membership” inthe organization, the LCN requires a prospective member to participate in a murder. In addition todemonstrating that the member has the “qualities” desired by this vicious organization, it was believed thatparticipation in the murder also made future cooperation impossible. Since the penalties for murder were so
great and the societal repulsion to murder was so strong, the LCN believed that those who participated inmurders would never become cooperating witnesses.5 The LCN has been proven wrong.

III. COUNTERS TO FEAR: WITNESS PROTECTION AND COOPERATION
PLEA AGREEMENTS
Over the past 40 years the United States has developed two powerful mechanisms for overcoming thefears that deter insiders from becoming witnesses. These two tools, when properly utilized, allow police andprosecutors to acquire the formal witness cooperation from insiders needed to convict leaders of criminal
conspiracies and demolish criminal organizations. These two tools are 1) the Federal Witness Protection
Program and 2) Cooperation Plea Agreements.
A. Federal Witness Protection Program
The Federal Witness Protection Program (“the Protection Program”) was created in 1970 by an act of
the U.S. Congress entitled “the Organized Crime Control Act of 1970.” The Protection Program wasoriginally created to help obtain witness testimony in Italian Mafia cases. To this end, the law created asystem to provide for the health, safety and welfare of witnesses and their families both during and after the

4 The drug boss is currently facing federal charges in Philadelphia, Pennsylvania relating to these cruel murders.
5 The LCN has a special “ceremony” where a man who is considered “qualiﬁed” to be a full or “made” member of the organization
swears an oath of allegiance, i.e., the oath of Omertà, the Maﬁa code of silence. Though the ceremony varies from family to family, it
usually involves the pricking of the trigger ﬁnger of the inductee, then dripping blood onto a picture of a Saint, which is then set aﬁrein his hand and kept burning until the inductee has sworn the oath of loyalty to his new “family.” The oath is along the lines of “[a]sthis card burns, may my soul burn in Hell if I betray the oath of Omertà,” or “As burns this saint, so will burn my soul. I enter alive
and I will have to get out dead.”― 37 ―

conclusion of the trial proceedings. In the years since it was created, the Protection Program has been
expanded to other types of signiﬁcant criminal conspiracy cases, not just those involving Italian Maﬁa cases,
and has been modiﬁed to address issues not originally foreseen, such as providing protection for incarcerated
cooperating witnesses.
By statute the United States Witness Protection Program is prosecutor-driven. The statute gives theUnited States’ Attorney General the authority to provide for witness relocation and protection. See Title 18,
United States Code, Section 3521, a copy of which is attached hereto as Annex 1. Thus prosecutors decide
who should be admitted into the Protection Program. Neither judges nor defense attorneys have a role in thisdecision. Over the last 40 years procedures and criteria have been established under the authority of the
Attorney General to ensure that the Protection Program only admits people who are witnesses in important
cases and who are not likely to constitute a future danger to society.6
In the implementation of the Protection Program a special unit in the Criminal Division of the
Department of Justice in Washington, known as the Ofﬁce of Enforcement Operations (“OEO”), oversees andadministers the operation of all phases of the Protection Program, including the decision of who should be
accepted into the Protection Program. In addition to the prosecutors in OEO, two other agencies havesubstantial roles in implementing the protection features of the Protection Program. These are the UnitedStates Marshals’ Service (Marshals’ Service) and the Federal Bureau of Prisons (“BOP”). The Marshals’Service handles protection for non-incarcerated witnesses and their family members; BOP handles protection
for witnesses who are serving jail sentences by establishing “jails within jails” that only house cooperating
witnesses.
Of course, no one can be forced to go into the Protection Program. It is purely a voluntary decision on
the part of a witness to request and accept protection under the umbrella of the Protection Program. Indeed, aperson can decide to leave the Protection Program at any time. However, because it is expensive and complex
to protect people, at the outset there is written agreement that is signed by the witness and the Marshals’Service that details what each has agreed to do. Thus, when it has been determined that a witness is a suitable
candidate for the Protection Program, the witness and his/her adult family members who are to be protected
will be asked to sign a Memorandum of Understanding. The Marshals’ Service agrees to satisfy eachcommitment set forth in the MOU as long as the witness remains in good standing in the Protection Program.
On the other hand, the Marshals’ Service will not be required to provide amenities or services not included in
the document. Typically the Marshals’ Service agrees to relocate the witness and family to another part of theUnited States, to provide a new identity, and to help the family start a new life, which includes basic job
location assistance for the relocated witness and, as well as the payment of living expenses for a period. At
the same time, the witness and family members must satisfy their obligations under the MOU, including
cooperation in searching for new employment in the relocation area and not taking any action that may
compromise their new identities and location.
The witness’ obligations can be difﬁcult to honor, including, speciﬁcally the agreement not to take any
action that might divulge the new identity and residential location. This means the witness cannot return to
the “danger area,”7 or stay in contact with friends and relatives, except through means authorized by the
Marshals’ Service. If the witness breaches his security, OEO will expel him from the Protection Program andno longer authorize the Marshals’ Service to provide services. (This does not mean that the witness’ newidentity will be revoked; nor does it mean that in the event of an actual danger that the witness will not beprovided protection. However, OEO may refuse to approve continued payment of subsistence or provision ofother types of support.)
The restrictions on the witnesses are often as stressful as the testimony given in court. 8 Somewitnesses ﬁnd the Protection Program so restrictive they are unable to adjust. Some even decide to return to

6 It should be emphasized that the Protection Program is only available to witnesses and their families. It is not designed to provide
protection to non-witnesses who may feel threatened by criminal elements.
7 The “danger area” is the broadly considered to be the areas where the witness is likely to be known or recognized, and therefore
potentially targeted for violent retribution. Thus, for example, the “danger area” for a witness from New York City could include alarge area of the East Coast of the United States since that is the geographic area in which he is most likely to be recognized.
8 It is not uncommon for a wife of a prospective witness to break down in tears when told that she will not be able to attend hermother’s funeral in the “danger area” when/if her mother should die.

― 38 ―

their old home city. There are a number of instances where witnesses who withdrew from the Protection
Program and returned to the “danger area” were murdered. For example, against the advice of the Marshals’Service a man from Philadelphia, Pennsylvania who had been a cooperating witness against the LCN foundthe Protection Program too restrictive and decided to leave the Protection Program and return to his oldhometown. He was murdered within a matter months of returning.
The humorous (and grossly inaccurate) portrayal of the Protection Program in the comedic movie My
Blue Heaven does catch one element many familiar with the Protection Program have experienced. The
principal character in the movie describes his attitude toward the changes required by participation in theProtection Program as follows:I get to never see my parents again or my loved ones. I get to live in a place ... it’s okay, don’t get me
wrong ... the air is clean, the people are nice ... but for a guy like me, raised on the sidewalks of thecity that never sleeps, it’s a living hell.9
Perhaps as a result of its strict rules, it is unquestionable that the Protection Program has been atremendous success. No relocated witness who followed the Marshals’ Service rules has been harmed, andthere have been thousands of successful prosecutions throughout the United States as a result of courtroom
testimony from protected witnesses. Most noteworthy, the entrenched leadership of the LCN organizations,which justiﬁed the original creation of the Protection Program, has been convicted in cities throughout theUnited States based upon the testimony of “insiders” who were protected by the Protection Program.
B. Cooperation Guilty Plea Agreements
The other “tool” that works hand-in-glove with the Witness Protection Program is the “Cooperation
Plea Agreement.” It is a fact that most “insiders” in serious criminal conspiracies have personally committed
criminal acts. The Cooperation Plea Agreement is a mechanism which allows criminal “insiders” to plead
guilty and to receive reduced jail sentences if they provide “substantial assistance” to the prosecution bycooperating and testifying.
It is the policy of the United States, incorporated in statutory law, to encourage such cooperation by
allowing judges to impose jail sentences that are less than the sentences they would have received if the
defendant had not cooperated. This policy recognizes that persons who have committed serious crimes should
not be allowed to avoid all penal sanctions by agreeing to testify. At the same time, the policy gives the“insider” hope that at the end of the process, the insider will still have the opportunity to start a new life. It isthe collective judgment of the United States that the cost of allowing reduced sentences for cooperation
against leaders of the criminal organization is justiﬁed by the need to defeat the criminal organizations thatpose such serious threat to civil society.
Prosecutors desiring the testimony of “insiders” always need to weigh the importance and public valueof the insider testimony in a speciﬁc case against the risk that a serious criminal will not receive appropriate
punishment. The Cooperation Plea Agreement is the balancing mechanism that allows both testimony andappropriate penal sanctions. Over the past thirty years the United States has developed considerable
experience in the use of Cooperation Plea Agreements. It is now common to require criminal-witnesses toplead guilty to representative criminal violations and face the likelihood of jail sentences.
Unlike the Witness Protection Program that is controlled by the prosecutor, the Cooperation Plea
Agreement requires the active involvement of the defense attorney and the judge, as well as the prosecutor.
First, the prosecutor discusses the case with his/her supervisors and obtains approval from the leadership of
the prosecution ofﬁce to consider a Cooperation Plea Agreement with the speciﬁc defendant in the speciﬁccase. Next, the prosecutor and defense attorney discuss the proposed plea agreement and its likely meaning inthe speciﬁc case. If the agreement is acceptable to the defense attorney and the client, the plea agreement
must be set forth in writing and signed by the prosecutor, the defense attorney and the defendant. Next, the

9 From dialogue of “Todd Wilkerson”, a ﬁctional participant in the Witness Protection Program, as portrayed by Steve Martin in MY
BLUE HEAVEN (Warner Brothers Pictures 1990).

― 39 ―

agreement is presented to the judge who can accept or refuse the agreement. Moreover, all parties understandand agree that the decision as to what sentence will be imposed is solely the decision of the judge.
Cooperation Plea Agreements used by the US Department of Justice expressly state that the agreement does
not bind the judge with respect to what sentence ought to be imposed. Thus, it is the judge, informed by his/
her training and by having a full understanding of the case, who decides what sentence to impose.
If the judge decides to accept the agreement, the judge will require the defendant-cooperator to plead
guilty in open court to the charges covered by the plea agreement. In most cases the defendant-cooperator will
testify for the prosecution after the judge has accepted the plea agreement and after the defendant-cooperator
has pled guilty. Thus, sentencing is deferred until the defendant-cooperator has completed cooperating withthe prosecutor so that the judge may consider the signiﬁcance of the cooperation. The expected cooperation
can often involve several trials and different crimes, depending on the knowledge of the defendant-cooperator.
In most violent criminal conspiracy or drug cases, the defendant-cooperator will be held in jail without bailand will be incarcerated in the Bureau of Prisons Protected Witness jail while cooperating and awaiting
sentence.10
When the time comes to sentence the cooperating defendant, the judge is required by law to consider
and evaluate these ﬁve factors:(1) the significance and usefulness of the defendant’s assistance, taking into consideration thegovernment’s evaluation of the assistance rendered;(2) the truthfulness, completeness, and reliability of any information or testimony provided by the
defendant;(3) the nature and extent of the defendant’s assistance;(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting fromhis assistance; and(5) the timeliness of the defendant’s assistance.
Section 5K1.1 of the United States Sentencing Guidelines.11 Applying these factors, the judge decides what
the appropriate sentence should be for the cooperating witness in the speciﬁc case.
The positive effects of a cooperation plea bargaining system is that law enforcement has something tooffer to overcome the fear of the potential witness that he will receive the same jail sentence as if he did notcooperate. Together with the Protection Program, the Cooperation Plea Agreement offers hope to thecooperating insider that he/she may have a new life free from the inﬂuences of the criminal syndicate they are
exposing.

IV. WITNESS PROTECTION PROGRAM AND COOPERATION PLEA
AGREEMENTS IN PRACTICE
One example of the effectiveness of these two tools, taken from our experience in prosecuting the
LCN in Philadelphia, Pennsylvania illustrates this. In the period between 1991 and 1993 a war broke out
between two competing factions of the LCN. During this period there were a series of murders and attempted
murders, including a brazen motor vehicle ambush on a major expressway at the height of rush-hour. These
competing acts of violence were ordered by the LCN “boss” and by his rival. Neither of the men actuallypulled a trigger or was near the scenes of the violent crimes. Indeed, the LCN structure, depicted in Appendix
III, is designed to insulate the leadership from the commission of crimes ordered by those leaders. As a resultof investigation, prosecutors learned the identity of three men who were “shooters” in three LCN murders andbuilt prosecutable cases against them. After much thought, prosecutors approached their defense attorneys
and entered into separate cooperation plea agreements with the each of the three conspirators AND sponsored

10 The time spent in jail will count toward whatever jail sentence is ultimately imposed.
11 In the United States sentencing in Federal Court is guided by Sentencing Guidelines. The provision of these guidelines applicable insentencing cooperators is Section 5K1.1. A copy of this provision is attached in Annex 2.

― 40 ―

them for the Witness Protection Program. Each man was required to plead guilty to his participation in themurders. Based upon their testimony, together with other evidence developed in a 2 year investigation,prosecutors charged the entire leadership of the Philadelphia LCN, including the boss and 22 others, with thecrime of Racketeering and multiple acts of murder and extortion. After a 3 month trial, interrupted at one
point by the murder of a brother of one of the insider-witnesses, all were convicted.12 At sentencing the bossand his “underboss” were sentenced to life in jail without the possibility of parole. The three cooperating
witnesses were sentenced respectively to 10, 12 ½ and 15 years in jail for their role as “shooters” in murders
ordered by the “boss.” Without the Cooperation Plea Agreements they would have been sentenced to life injail. Each served his sentence in a Bureau of Prisons Witness Protection facility in different federal jails, andthereafter was protected by the Protection Program.

V. CONCLUSION
In order to defeat modern criminal organizations, modern law enforcement needs to adapt to thechallenges posed by sophisticated criminal syndicates. This means civil society must realize that tools
appropriate for dealing with individual criminal acts are not adequate when dealing with the modern,sophisticated criminal organizations. Accordingly, our nations must provide law enforcement with the tools
necessary to obtain testimony from members of these criminal conspiracies. This testimony will protect
society from criminal organizations and at the same time provide due process in the legal proceedings against
the leaders of these conspiracies. In the United States the Witness Protection Program and Cooperation Plea
Agreement have been effective tools in eliminating and minimizing entrenched criminal organizations, andoffer a baseline experience that other countries may reference when considering how to deal with modern
criminal organizations.

12 The prosecution had offered to have the Witness Protection Program cover the brother and his family. However, the brother refused.
At the time he was murdered he was living in his family home in Philadelphia.

― 41 ―

APPENDIX I
Title 18, United States Code, Section 3521, Witness Relocation and Protection(a)(1) The Attorney General may provide for the relocation and other protection of a witness or a potential
witness for the Federal Government or for a State government in an official proceeding concerning anorganized criminal activity or other serious offense, if the Attorney General determines that an offense
involving a crime of violence directed at the witness with respect to that proceeding, an offense set forth inchapter 73 of this title directed at the witness, or a State offense that is similar in nature to either such offense,
is likely to be committed. The Attorney General may also provide for the relocation and other protection of
the immediate family of, or a person otherwise closely associated with, such witness or potential witness if
the family or person may also be endangered on account of the participation of the witness in the judicial
proceeding.
(2) The Attorney General shall issue guidelines deﬁning the types of cases for which the exercise of theauthority of the Attorney General contained in paragraph (1) would be appropriate.
(3) The United States and its ofﬁcers and employees shall not be subject to any civil liability on account ofany decision to provide or not to provide protection under this chapter.
(b)(1) In connection with the protection under this chapter of a witness, a potential witness, or an immediatefamily member or close associate of a witness or potential witness, the Attorney General shall take suchaction as the Attorney General determines to be necessary to protect the person involved from bodily injury
and otherwise to assure the health, safety, and welfare of that person, including the psychological well-being
and social adjustment of that person, for as long as, in the judgment of the Attorney General, the danger tothat person exists. The Attorney General may, by regulation-( A)		 provide suitable documents to enable the person to establish a new identity or otherwise protect theperson;(B)provide housing for the person;( C) provide for the transportation of household furniture and other personal property to a new residenceof the person;
(D) provide to the person a payment to meet basic living expenses, in a sum established in accordancewith regulations issued by the Attorney General, for such times as the Attorney General determines to be
warranted;( E)

assist the person in obtaining employment;( F)

provide other services necessary to assist the person in becoming self-sustaining;( G) disclose or refuse to disclose the identity or location of the person relocated or protected, or any othermatter concerning the person or the Protection Program after weighing the danger such a disclosure would
pose to the person, the detriment it would cause to the general effectiveness of the Protection Program, andthe beneﬁt it would afford to the public or to the person seeking the disclosure, except that the Attorney
General shall, upon the request of State or local law enforcement officials or pursuant to a court order,
without undue delay, disclose to such officials the identity, location, criminal records, and fingerprints
relating to the person relocated or protected when the Attorney General knows or the request indicates thatthe person is under investigation for or has been arrested for or charged with an offense that is punishable
by more than one year in prison or that is a crime of violence;― 42 ―

( H) protect the conﬁdentiality of the identity and location of persons subject to registration requirements
as convicted offenders under Federal or State law, including prescribing alternative procedures to thoseotherwise provided by Federal or State law for registration and tracking of such persons; and(I) exempt procurement for services, materials, and supplies, and the renovation and construction of safe
sites within existing buildings from other provisions of law as may be required to maintain the security ofprotective witnesses and the integrity of the Witness Security Protection Program.
The Attorney General shall establish an accurate, efﬁcient, and effective system of records concerning thecriminal history of persons provided protection under this chapter in order to provide the information
described in subparagraph (G).
(2) Deductions shall be made from any payment made to a person pursuant to paragraph (1)(D) to satisfy
obligations of that person for family support payments pursuant to a State court order.
(3) Any person who, without the authorization of the Attorney General, knowingly discloses any
information received from the Attorney General under paragraph (1)(G) shall be ﬁned $5,000 or imprisoned
ﬁve years, or both.
(c) Before providing protection to any person under this chapter, the Attorney General shall, to the extent
practicable, obtain information relating to the suitability of the person for inclusion in the Protection Program,including the criminal history, if any, and a psychological evaluation of, the person. The Attorney Generalshall also make a written assessment in each case of the seriousness of the investigation or case in which theperson’s information or testimony has been or will be provided and the possible risk of danger to otherpersons and property in the community where the person is to be relocated and shall determine whether theneed for that person’s testimony outweighs the risk of danger to the public. In assessing whether a person
should be provided protection under this chapter, the Attorney General shall consider the person’s criminal
record, alternatives to providing protection under this chapter, the possibility of securing similar testimony
from other sources, the need for protecting the person, the relative importance of the person’s testimony,
results of psychological examinations, whether providing such protection will substantially infringe upon therelationship between a child who would be relocated in connection with such protection and that child’s
parent who would not be so relocated, and such other factors as the Attorney General considers appropriate.
The Attorney General shall not provide protection to any person under this chapter if the risk of danger to the
public, including the potential harm to innocent victims, outweighs the need for that person’s testimony. This
subsection shall not be construed to authorize the disclosure of the written assessment made pursuant to thissubsection.
(d)(1) Before providing protection to any person under this chapter, the Attorney General shall enter into amemorandum of understanding with that person. Each such memorandum of understanding shall set forth the
responsibilities of that person, including-(A) the agreement of the person, if a witness or potential witness, to testify in and provide information to
all appropriate law enforcement ofﬁcials concerning all appropriate proceedings;(B)

the agreement of the person not to commit any crime;(C) the agreement of the person to take all necessary steps to avoid detection by others of the facts
concerning the protection provided to that person under this chapter;(D)the agreement of the person to comply with legal obligations and civil judgments against that person;(E)the agreement of the person to cooperate with all reasonable requests of ofﬁcers and employees of― 43 ―

the Government who are providing protection under this chapter;(F)

the agreement of the person to designate another person to act as agent for the service of process;(G) the agreement of the person to make a sworn statement of all outstanding legal obligations, including
obligations concerning child custody and visitation;(H) the agreement of the person to disclose any probation or parole responsibilities, and if the person is
on probation or parole under State law, to consent to Federal supervision in accordance with section 3522
of this title; and(I) the agreement of the person to regularly inform the appropriate Protection Program official of theactivities and current address of such person.
Each such memorandum of understanding shall also set forth the protection which the Attorney General has
determined will be provided to the person under this chapter, and the procedures to be followed in the case ofa breach of the memorandum of understanding, as such procedures are established by the Attorney General.
Such procedures shall include a procedure for filing and resolution of grievances of persons provided
protection under this chapter regarding the administration of the Protection Program. This procedure shall
include the opportunity for resolution of a grievance by a person who was not involved in the case.
(2) The Attorney General shall enter into a separate memorandum of understanding pursuant to thissubsection with each person protected under this chapter who is eighteen years of age or older. The
memorandum of understanding shall be signed by the Attorney General and the person protected.
(3) The Attorney General may delegate the responsibility initially to authorize protection under this chapter
only to the Deputy Attorney General, to the Associate Attorney General, to any Assistant Attorney General in
charge of the Criminal Division or National Security Division of the Department of Justice, to the AssistantAttorney General in charge of the Civil Rights Division of the Department of Justice (insofar as the delegation
relates to a criminal civil rights case), and to one other ofﬁcer or employee of the Department of Justice.
(e) If the Attorney General determines that harm to a person for whom protection may be provided under
section 3521 of this title is imminent or that failure to provide immediate protection would otherwise
seriously jeopardize an ongoing investigation, the Attorney General may provide temporary protection tosuch person under this chapter before making the written assessment and determination required bysubsection (c) of this section or entering into the memorandum of understanding required by subsection (d) of
this section. In such a case the Attorney General shall make such assessment and determination and enter intosuch memorandum of understanding without undue delay after the protection is initiated.
(f) The Attorney General may terminate the protection provided under this chapter to any person who
substantially breaches the memorandum of understanding entered into between the Attorney General and that
person pursuant to subsection (d), or who provides false information concerning the memorandum of
understanding or the circumstances pursuant to which the person was provided protection under this chapter,
including information with respect to the nature and circumstances concerning child custody and visitation.
Before terminating such protection, the Attorney General shall send notice to the person involved of thetermination of the protection provided under this chapter and the reasons for the termination. The decision of
the Attorney General to terminate such protection shall not be subject to judicial review.

― 44 ―

APPENDIX II§5K1.1. Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has provided substantial assistance in theinvestigation or prosecution of another person who has committed an offense, the court may depart from theguidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include,
but are not limited to, consideration of the following:
(1)
(2)
(3)
(4)
(5)

the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking
into consideration the government’s evaluation of the assistance rendered;
the truthfulness, completeness, and reliability of any information or testimony provided by the
defendant;
the nature and extent of the defendant’s assistance;
any injury suffered, or any danger or risk of injury to the defendant or his family resulting fromhis assistance;
the timeliness of the defendant’s assistance.

Commentary of the Sentencing Commission includes the following:
A defendant’s assistance to authorities in the investigation of criminal activities has been recognizedin practice and by statute as a mitigating sentencing factor. The nature, extent, and significance ofassistance can involve a broad spectrum of conduct that must be evaluated by the court on an
individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based uponvariable relevant factors, including those listed above. The sentencing judge must, however, state thereasons for reducing a sentence under this section. 18 U.S.C. § 3553(c). The court may elect toprovide its reasons to the defendant in camera and in writing under seal for the safety of the defendantor to avoid disclosure of an ongoing investigation― 45 ―

APPENDIX III― 46 ―

PARTICIPANTS’ PAPERS AND CONTRIBUTIONS
Mr. Rommel Baligod
Regional Prosecutor, Region II, Ofﬁce of the Witness Protection Programme,
Department of Justice, Republic of the Philippines
Mr. Lindley Santillan
Legal Ofﬁcer, Committee on Justice, Senate of the Philippines
Ms. Philippe Nil
Director, Legal Education and Dissemination Department, Ministry of Justice, Cambodia
Mr. Trimulyono Hendradi
Public Prosecutor, International Legal Co-operation Division, Attorney General’s Ofﬁce, Indonesia
Ms. Vilaysinh Daihansa
Prosecutor, Deputy of the Head Division, Ofﬁce of the Supreme People’s Prosecutor, Lao PDR
Mr. Moktar Bin Mohd Noor
Superintendent, International Affairs/Special Investigation Unit, Royal Malaysia Police, Malaysia
Mr. San Lin
State Law Ofﬁcer (Director), Mon State Law Ofﬁce, Ofﬁce of the Attorney General, Myanmar
Mr. Kerati Kankaew
Deputy Chief Public Prosecutor, Pattaya Public Prosecutors Ofﬁce, Thailand
Mr. Nguyen Nhu Nien
Prosecutor, Department on Exercising the Right to Public Prosecution and Supervising the Investigation of
Criminal Cases involving National Security, The Supreme People’s Prosecution Ofﬁce, Vietnam
Please note that the following papers have not been edited for publication.
The opinions expressed therein are those of the authors and do not necessarilyreflect the position of the departments they represent.

― 47 ―

UPDATE ON THE IMPLEMENTATION OF THE WITNESSPROTECTION SECURITY AND BENEFIT PROGRAM (WPSBP)
Rommel Baligod＊

I. OVERVIEW OF PROGRAM’S OPERATIONS
At a time when government is under ﬁre because of its perceived inability to stop unexplained killings
as borne by the recommendations of the Melo Commission, the UN Special Rapporteur Philipp Alston, EU
Needs Assessment Mission and the National Consultative Summit on Extra Judicial Killings and Enforced
Disappearances organized by the Supreme Court, the need to improve protection of witnesses, victims, judges
and prosecutors has been consistently articulated.
Although there has been a marked increase in the number of applications for coverage under the
WPSB Program, due mainly to the increasing awareness of the importance of protecting witnesses in theprosecution of heinous crimes, the Program has remained under resourced. From the stand point of theprosecutors and law enforcers witness protection and care has become a vital tool in the effective prosecutionof criminal cases. With the proactive stance taken by the Justice Department under Secretary Leila M. de
Lima in the implementation of the Program’s mandate even the courts have relied on the Program for security
and other allied assistance to judges and court personnel particularly in high risk cases.
From only six admissions in its inception in 1991, the Program has expanded its operations throughthe years. For the period covering 1 January 2010 to 30 November 2010 a record of 162 applications wereﬁled with the Program. Out of this number 113 applicant witnesses were admitted and added to the witnesses
already being maintained by the Program. As of 30 November 2010, the Program had under its coverage atotal of 463 witnesses nationwide. However, for the period 1 July-30 November 2010 alone, commencing
from the assumption to office of the new administration under the 15th President of the Republic of thePhilippines, His Excellency, Benigno C. Aquino, 109 applications were filed out of which 63 applicant
witnesses were admitted.
As a general rule, dependents of covered witnesses extend up to the second civil degree. At an averagefamily size of four, this translates to additional 2,000 warm bodies to feed, secure, transport, send to school
and care for. We have obtained 61 convictions in 75 important cases with 42 convicted accused and utilizing
36 covered witnesses; thereby posting a conviction rate of 81.33% for the period under review.
The increase in the number of witnesses and the successful prosecution of cases are mainly attributed
to the late Senior State Prosecutor Leo Dacera, the former Program Diretor of the WPP, who passed away lastmonth. During his administration, awareness of the importance of protecting witnesses in the prosecution ofheinous crimes has dramatically increased.
Pursuant to the directive of Secretary De Lima to strengthen the Witness Protection Program thefollowing measures have been recommended for implementation:
A. Proactive Implementation
Program’s implementers in the regions have been directed to adopt a proactive stance in seeking out
witnesses in cases involving political killings, media murders and human rights violations. Althoughapplication for admission for witness protection coverage necessarily requires strict compliance with statutory
requirements, stringent vetting procedures and the identiﬁcation and evaluation of threats, program personnel
have been directed to liberalize admission requirements particularly when threat level on bona ﬁde witnesses＊

Regional Prosecutor, Region II, Ofﬁce of the Witness Protection Program, Department of Justice, Republic of the Philippines.

― 49 ―

in media and political killings is high.
B. Enhancement of Witness Benefits
Witnesses often decline proposal to testify for the prosecution not only because of fear of physicalharm but more often because of economic dislocation. To allay witnesses’ uncertainty because of a drasticchange in their way of life upon admission into the Program economic beneﬁts and social services should beenhanced.
Psychological counseling which are presently undertaken in coordination with the Department of
Health and Department of Social Welfare and Development shall be extended ample logistical support.
Direct financial assistance shall likewise be increased to ameliorate witness clients’ economic
condition.
Increase in employees’ beneﬁts.
C. Witness-Client Skills Training & Education
To prepare witnesses in re-joining mainstream society after their discharge from the Program asprotected witnesses and to lessen their dependence on the Program consistent with security requirements awide-ranging vocational orientation-training program shall be undertaken in cooperation with TESDA and/or
TLRC to prepare them for suitable employment here and abroad .
D. Institutionalization of Coordination with Judiciary & Other Pillars of Criminal Justice System
Speedy disposition of cases is a key feature in the maintenance of a reliable and credible witness
protection program. Prolonged pendency of cases particularly before the high courts results to apathy andindifference of witnesses on the success of the case. Loss of opportunity, isolation and boredom associatedwith extended confinement in relocation sites and safe houses away from native community and relatives
dampen witnesses’ resolve to testify. A team of prosecutors shall be organized to monitor and coordinate, andif circumstances so warrant, take over cases involving covered witnesses.
E. Upgrade in Training and Equipment of Protective and Administrative Personnel
Acquisition of ﬁrearms suitable for close quarter battle, body armor and communication equipment
for use of protective personnel are essential requirements for enhancement of the Program’s protective
capability.
Upgraded training of administrative personnel should likewise be undertaken to keep them posted ontrends in record keeping and conﬁdentiality.
Purchase of utility vehicles to augment the Program’s aging ﬂeet to transport witnesses from regional
relocation sites to trial venues across the country is an operational necessity for the security and well being of
witnesses.
F. Construction of a Secure WPP Building
At present the Program’s administrative operations are carried out in three separate locations within
the DOJ compound for lack of space. This exposes program documents, personnel and witnesses to risk
because accused, their relatives, representatives, lawyers, their agents and the general public all converge in
DOJ to follow up their various concerns. Operation is hampered and confidentiality and security is
unavoidably compromised under this set-up as regulations and procedures designed to protect and secure
covered witnesses cannot be fully implemented as it would interfere with activities of other DOJ agencies
also holding ofﬁce in the compound.
It must be noted that two media organizations (Jucra and Juror) doing the justice beat have free access― 50 ―

to all parts of the DOJ compound. For a credible witness protection organization to function there is a needfor the construction of a secure building devoted to witness protection purposes only to ensure the effective
discharge of the Program’s mandate.

II. PROGRAM SPECIAL CONCERNS
A. Media Murders, Extra Judicial Killings, Ampatuan Maguindanao Massacre & Rebellion Cases
Because of the rise in media murder cases and extrajudicial killings the Philippines was labelled by
the international media organizations as the most murderous country for journalists.
To dispel the impression that in our country many killers and masterminds of journalists who expose
corruption in government get off the hook owing to the weakness of our criminal justice system, Secretary
Leila De Lima directed the Program implementers to be involved in case buildup, identiﬁcation of potential
witnesses under threat, filing of charges, securing of warrants and relocation of witnesses in a number ofcases.
On 23 November, 2009 the infamous Maguindanao massacre, which claimed 57 innocent lives,
including a signiﬁcant number of media practitioners, took place in Ampatuan, Maguindanao.
Suspects, including members of the powerful Ampatuan political clan, have been charged with 57
counts of murder while others have been detained for rebellion charges using Program resources. The
prosecution is also directly supported by WPP including litigation costs of prosecutors, expert witness andother technical personnel. The cases are pending trial before the Quezon City Regional Trial Court. All in all
close to 900 persons have been named in the indictment in said cases while many more remain as John Does.
The speedy convictions of the accused in the murders of Edgar Damalerio (Pagadian), Allan Dizon(Cebu) and Marlene Esperat (Sultan Kudarat), Armando Pace (Digos City), Judge Orlando Velasco(Dumaguete) have been secured through the testimony of witnesses under the Program.
Consequently, Program resources have to be applied above the customary level to these national
interest cases, most especially in the recent Maguindanao massacre, in support of law enforcement,
intelligence and investigation agencies’ drive to help speedily resolve the case.
B. US Rewards For Justice Program
In the past the US government has paid substantial amounts to informants who proved crucial to thecapture of extremist leaders in Mindanao. Recently 4 individuals who provided information for theneutralization of Khadaffy Janjalani and Jainal Antel Sali (Abu Solaiman) were admitted into the Program at
the behest of the US State Department after payment to them of substantial amount of money. The rationale
for the huge payments in cash to informants with extensive media coverage, is to encourage potential
informants to come forward with information against remaining ASG and Jemaa Islamia personalities such as
Isnilon Hapilon, Dulmatin Omar Patek and other religious extremist leaders still at large. This would enhance
government’s anti-terrorism campaign. Thereafter, the informants-witnesses and their families were turned
over to the Witness Protection Program (WPP). This required refurbishing of existing DOJ facilities for use
as secure temporary relocation sites, purchase of additional vehicles to supplement the Program’s aging ﬂeet,
and payment of incentive pay to personnel directly involved in this operation for increased work load.
C. Support for Anti Terrorism Cases
Support for President Aquino’s action program against anti-terrorism efforts continue to take up alarge part of the Program’s funds. Although the number and intensity of actual combat operations against the
Abu Sayaff Group, Jemmaa Islamia and MILF may have declined the extremist groups appear to have taken adifferent tack by leaving their mountain lairs in Mindanao and shifting operations to the country’s urban― 51 ―

centers. Thus, the spate of terror bombing attacks in Regions 9 and 12 in recent months have required
extensive Program intervention in identifying and securing material witnesses and their relocation to safe
locations.
Considering the mobility of suspected terrorists and their involvement in numerous cases pending
across the country it has been essential to deploy and re-deploy material witnesses for them to testify invarious courts in Metro Manila and Mindanao and relocate them elsewhere to ensure confidentiality andsecurity. Emergency relocation of WCs and families to different harbouring sites in the country has increased
cost of operation.
Again, through the cooperation and testimony of witnesses under the Program the prosecution
succeeded in securing convictions in cases against ASG members and MILF Commander Tahir Alonto andother accused.
Thus, like in other Program special concerns, in anti-terrorism cases material and human resources
above the customary level for regional cases have to be provided directly to witnesses in support ofgovernment’s goal to decisively stomp out terrorism and criminality.
D. Trafficking In Persons Cases
The deportation of Filipinos from Malaysia and other Asean neighbors brought in its wake the ﬁling
in our courts of human trafﬁcking cases mostly at the behest of international organizations. Considering thatcriminal cases against organized criminal syndicates have to be filed nationwide in the victims’ port ofdeparture/re-entry Program resources were devoted to secure, house and transport witnesses in support of saidcases. Because of the successful prosecution of human trafﬁcking cases Zamboanga City Prosecutor Ricardo
Cabaron who is a Program implementer in Region 9 was recognized by the United States Government as the2007 Sen. Benigno Aquino, Jr. Fellowship for Professional Development awardee and awarded a training
course in the US.
E. Regionalization of Temporary Shelters and Safehouses
To highlight the signiﬁcance of the Program’s role in securing our witnesses, it is important to notethat because of close family ties and extended family system ingrained in our culture the Program isoftentimes compelled to grant witnesses’ requests to keep all family members in the safehouse for theirsecurity and peace of mind. This accounts for a high number of occupancy in temporary shelters. This is
however more economical compared to the need to transport and secure the witnesses whenever they would
want to visit their family outside of the safehouse.
To enhance operational efﬁciency, cut down on transport cost and reduce stress on witness clients andtheir families a number of regional temporary shelters with full security complement have been established inareas of witness preference where crime incidence on national interest cases appear to be on the rise. This is
an area that we would have to closely look into to make the Program’s operations in the countryside better
felt. By doing so we would be able to make the government particularly the Department of Justice more
relevant to the people’s needs particularly the underprivileged and marginalized in our aim to strengthen therule of law in our country.

III. CONCLUSION
I conclude my presentation by proposing the following amendments to the Witness Protection Act:(a) Inclusion of provisions for evidentiary rules to permit witnesses to testify in a manner that ensures theirsafety such as video links, close circuit screens and other adequate means. Under the present set up, witnesses
covered are treated and required to testify like ordinary witnesses. There are no rules as of yet on the mannerof their testifying.

― 52 ―

(b) Organic Protection Force for the Program should be established by law. The Program relies mostly on
the other law enforcement agencies for protection and security of the witnesses. The downside of this is that
we are left at the mercy of the other law enforcement agencies. In some regions, the Program practically has
to plead to get security personnel from other agencies.
(c) The law should allow law enforcers to be covered under the Program. As earlier pointed out by Deputy
Prosecutor General Gaña, law enforcers who are witnesses or have information regarding the commission ofa crime cannot avail of the beneﬁts under the program. This inhibition does not take into account the fact thatin the prosecution of most crimes, law enforcers who responded to and investigated their commission, areindispensable witnesses. Needless to say that even law enforcers in this jurisdiction are also susceptible tocorruption, threat and intimidation, causing them to avoid testifying or to testify falsely or evasively.
(d) Heavier penalty should be imposed for harassment of witnesses. Under existing law, the penalty forharassment is ﬁne of not more than 3,000 pesos or imprisonment of not more than one year or both. The law
is too lenient on this.
(e)Expanding the conﬁdentiality provisions of the law to include all aspects of the coverage(f) Increase penalty for recanting witnesses. Citation for contempt or perjury are the only penalty forrecanting witnesses. The penalty should be increased including the reparation of all government expenses
relative to his coverage(g) Provisions on cross border relocation should be included in the law. There is no law at the moment
requiring for the procedure and the manner of relocation of covered witnesses to other countries. No bilateralagreement with other countries on the matter.
(h) Change of identity implementation provisions must be had. The law or the rules of court do not haveprovisions on how to secure a change of witness identity.
(i) Fund augmentation for the Program. The present fund allocation of the Program is insufﬁcient to feed,
secure, care and protect the more than 2,000 witnesses and member of their respective families.
In parting, I quote the late Program Director Dacera,“The witnesses must realize that they have only one country which they have the duty to serve, loveand protect. In a more direct way, we must let them realize that every citizen has the duty to ﬁght crime andrespect the law, testify and convict criminals unmotivated by economic benefits alone for our nation toprosper and develop. It is only after we have achieved this that we may state that we have amply responded to
today’s challenge.”― 53 ―

STRENGTHENING PROTECTION FOR WHISTLE-BLOWERS
AND WITNESSES
Lindley Santillan＊

Strengthening Protection
for Whistle-blowers andWitnesses
AN UPDATE ON THE CURRENTSTATUS OF PENDING LEGISLATION
ON WITNESS AND
WHISTLEBLOWER PROTECTION
1＊Legal Ofﬁcer, Committee on Justice, Senate of the Philippines.

― 54 ―

2

3― 55 ―

4

5― 56 ―

6

7― 57 ―

8

9― 58 ―

10

11― 59 ―

12

13― 60 ―

14

15― 61 ―

16

17― 62 ―

SECURING PROTECTION AND COOPERATION OF
WITNESSES AND WHISTLE-BLOWERS
Ms. Philippe Nil＊

I. INTRODUCTION
Witnesses and whistle-blowers’ cooperation is a signiﬁcant component in the conviction of offenders,
especially in cases of corruption and organized crime, which damage the development of a country, its
national economy, the rule of law, and the security and values of society. Witnesses and whistle-blowers give
evidence and information in the investigation and trial of criminal offences and sometimes require protection
due to the intimidation or threat of harm they may face in cooperating with the authorities to prosecute
dangerous or powerful persons involved in corruption or organized crime. The government should pay more
attention to this issue and provide effective laws and regulations and strengthen law enforcement, while
fulﬁlling its fundamental legal obligations to its citizens. Especially, the government should establish effective
mechanisms to protect both witnesses and whistle-blowers, including building the capacity of law
enforcement personnel who implement these mechanisms.

II. EFFECTIVE LEGISLATION AND MEASURES
A. Effective Legislation
1. Legal and Judicial Reform
The Legal and Judicial Reform Strategy is a priority reform programme of the government of
Cambodia. The strategic objectives of the Legal and Judicial Sector, in accordance with Constitutional values
and the overall goals of supporting development and poverty reduction, are identiﬁed as:– Improve the protection of personal rights and freedoms;– Modernize the legislative framework;– Provide better access to Legal and Judicial information;– Enhance the quality of legal processes and related services;– Strengthen judicial services, i.e. the judicial power and the prosecutorial services;– Introduce alternative dispute resolution methods;– Strengthen Legal and Judicial sector institutions to fulﬁll their mandates.
2. Fundamental Laws
In response to The Legal and Judicial Reform Strategy, Cambodia adopted fundamental laws toimprove the legal system, such as the Law on Civil Procedure, the Law on the Civil Code, the Law on
Criminal Procedure, and the Law on the Criminal Code. Other laws adopted were the Law on AntiCorruption, the Law on Anti-Human Trafﬁcking, and the Law on Terrorism.
Currently, some other necessary laws are being drafted and amended to national and international
standards. The amending Law on Anti-drug Trafﬁcking is currently under such amendment. Moreover, theMinistry of Justice will draft the Law on Protection of Witnesses as soon as possible.
3. Ratiﬁcation of Conventions
Cambodia has already ratiﬁed or acceded to essential conventions: it ratiﬁed the the United Nations＊

Director, Legal Education and Dissemination Department, Ministry of Justice, Cambodia.

― 63 ―

Convention against Transnational Organized Crime on 12 December 2005, and acceded to the United Nations
against Corruption on 5 September 2007.
4. Effective Mechanisms to Protect Witnesses and Whistle-blowers
Cambodian law does not mention in detail securing the protection of witnesses and whistle-blowers.
But the law does provide for police protection of witnesses and whistle-blowers as well as other ways of
ensuring their safety. Furthermore, Article 24 of the United Nations Convention against Transnational
Organized Crime (UNTOC) speciﬁes that States Parties shall take appropriate measures to protect witnesses
from potential retaliation or intimidation. As a result, measures for witness protection are identiﬁed as:– Procedures for the physical protection of witnesses;– Relocation and non-disclosure;– Limiting the disclosure of information concerning their identity;– Evidentiary rules to permit witnesses to testify in a manner that ensures their safety; such as via
video link or other adequate means.
Articles 32 and 33 of the United Nations Convention against Corruption (UNCAC) also require States
Parties to take appropriate measures to provide effective protection for witnesses. Article 33 requires States
Parties to consider incorporating into their domestic legal systems appropriate measures to protect whistleblowers from any unjustiﬁed treatment as they are frequently important in detecting offences in the public
and private sectors.
B. Measures
There are several measures to protect witnesses to serious crime:– Measures to protect witnesses should include whistle-blowers, victims, and individuals who havebeen involved in criminal activity but who cooperate with police, prosecution, or the court, as wellas their families;– Police carefully protect witnesses from intimidation;– Procedural protection of witnesses needs to be implemented via the Law on Criminal Procedure orin speciﬁc legislation or speciﬁc provisions (to allow for trial detention of the alleged perpetrator; toprevent interference with the witnesses and others by alleged perpetrator; to order non-disclosureand testimony from witnesses);
The Law on Criminal Procedure and Law on the Criminal Code of Cambodia mention the procedureof witness protection, but not in great detail. Mention is restricted to the appearance of witnesses andinvestigation of evidence.

III. CRIMINALIZATION AND PUNISHMENT
A. Criminal Prosecution of Offenders who threaten Witnesses and Whistle-blowers
Those who commit corruption and organized crime use their wealth and power to undermine justice.
Justice cannot be done if witnesses are threatened. Furthermore, serious crimes like corruption cannot be
detected and punished if the investigators, prosecutors and the courts cannot prove guilt because evidence issuppressed. Therefore, under the Law on the Criminal Code of Cambodia, offenders who threaten witnesses
are subject to criminal prosecution.
For example, in the Law on the Criminal Code of Cambodia Article 546 Intimidations against a
Witness: “Any act of intimidation committed by a perpetrator alone or with consent of a third party toinstigate a witness not to give any statement or to provide false oral or written testimony is punishable by an
imprisonment from 2 (two) years to 5 (five) years and a fine from 4,000,000 (four million) Riels to
10,000,000 (ten million) Riels.
It is punishable by an imprisonment from 5 (ﬁve) years to 10 (ten) years if the offence produces an― 64 ―

effect. (Unofficial translation)”
And Article 548 Bribery given to a Witness: “It is punishable by an imprisonment from ﬁve years to
10 (ten) years any person who gives directly or indirectly donation, present, promise or any interest to awitness in order:
1. not to testify as a witness;
2. to provide false testimony. Unofficial translation”
Article 23 of the United Nation Convention against Transnational Organized Crime (UNTOC) and
Article 25 of the United Nation Convention against Corruption (UNCAC) require States Parties to address the
problem of “obstruction of justice” by enacting legislation or other measures to criminalize enforcement,
threats, or inducements to interfere with witnesses.
Unfortunately, Cambodian law does not mention criminal prosecution of offenders who threaten
whistle-blowers.
B. Criminal Prosecution for Assisting Perpetrators, Co-Perpetrators, Instigators and Accomplices
The Criminal Code of Cambodia penalizes assistance to perpetrators, co-perpetrators, instigators andaccomplices. Involvement in criminal activities causes many dangers to society and the economy, and iscontrary to social values. Thus, the Law on the Criminal Code of Cambodia penalizes those who support
criminals.
For example, Article 544: “It is punishable by an imprisonment from one year to three years and a ﬁnefrom 2,000,000 (two million) Riels to 6,000,000 (six million) Riels for any act of providing to a perpetrator,
co-instigators, instigator or accomplice of a felony with:
1. a lodging;
2. a hiding place;
3. means for living;
4. all means which facilitates the evasion or escape from an investigation (Unofficial translation).”C. Criminal Prosecution of Witnesses and Whistle-blowers for False Testimony
Witnesses can be prosecuted for giving false testimony and for accepting a bribe to produce false
testimony. As these actions obstruct justice, the Law on the Criminal Code of Cambodia provides forprosecution of such actions.
For example, Article 545 Penalties for False Testimonies: “False testimonies made after taking anoath before the court or a judicial police ofﬁcer who acts under the framework of a rogation commission orderis punishable by an imprisonment from 2 (two) years to 5 (ﬁve) years and a ﬁne from 4,000,000 (four million)
Riels to 10,000,000 (ten million) Riels. (Unofficial translation)”
And Article 547 Bribery taken by a Witness to Produce False Testimonies: “It is punishable by an
imprisonment from 5 (ﬁve) years to 10 (ten) years for the act of any witness who directly or indirectly solicits
or accept donation, present, promise or any interest in order:
1. not to testify as a witness;
2. to provide false testimony. (Unofficial translation)”

IV. MITIGATION OF PUNISHMENTS AND/OR IMMUNITY GRANTS
A. Mitigation of Punishments of Witnesses
Witnesses to corruption and organized crime may include whistle-blowers, victims, and perpetrators
who have become state witnesses. All should receive mitigation of punishment.
For example, the Law on the Criminal Code of Cambodia provides for mitigating circumstances in― 65 ―

Articles 93-95, which leave decisions to the courts ’ discretion. Article 93 Definition of Mitigating
Circumstances: “When the nature of the offences or the personality of the perpetrator justiﬁes, the court may
provide the accused the benefit of mitigating circumstances. The mitigating circumstances may also be
granted to the convicted person even he/she is declared as an individual who is in recidivism.” Article 94
Impact of Mitigating Circumstances: “When the court grants the accused the mitigating circumstances, theminimum of the principal penalties imposed upon for a felony or a misdemeanor is reduced according to thefollowing scale:
1. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 10 (ten)years, it is reduced to 2 (two) years;
2. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 5 (ﬁve)years and less than 10 (ten) years, it is reduced to 1 (one) year;
3. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 2 (two)years and less than 5 (ﬁve) years, it is reduced to 6 (six) months;
4. If the minimum of the penalty for imprisonment imposed upon is equal to or more than 6 (six)days, and less than 2 (two) years, it is reduced to 1 (one) day;
5. The minimum of the ﬁne imposed upon is reduced to a half.”
Article 95 Penalty of Life Imprisonment and Mitigating Circumstances: “When an offender issentenced to life imprisonment, the judge who grants mitigating circumstances may pronounce the penalty of
imprisonment of between 15 (ﬁfteen) years and 30 (thirty) years. (Unofficial translation).”B. Immunity Grants with Witness Protection Measures
Witnesses to corruption and organized crime may include whistle-blowers, victims and perpetrators
who have become state witnesses. They and their families should get immunity from prosecution. Therefore,
current legislation on witness protection needs to be amended to include clear provision for immunity grants.

V. INSTANCES OF SUCCESSFUL AND UNSUCCESSFUL
IMPLEMENTATION
A. Implementation of Securing Protection of Witnesses and Whistle-blowers
As mentioned earlier, the Criminal Procedure Code and the Criminal Code of Cambodia briefly
mention legal protection of witnesses and whistle-blowers. Other measures to secure protection of witnesses
are also in place, but need to be elaborated.
Effective legislation and measures or mechanisms to protect witnesses and whistle-blowers areespecially necessary to protect against revelation of witnesses’ identity, ensure their permanent safety, andprotect their families.
B. Implementation of Cooperation of Witnesses and Whistle-blowers
Cooperation of witnesses, whistle-blowers, victims, as well as former perpetrators is essential toensure successful prosecutions and justice.

VI. RECOMMENDATIONS
Recommendations relate to securing protection and cooperation of witnesses and whistle-blowers:– Establish effective legal measures or mechanisms to protect witnesses and whistle-blowers to
improve the legal system and civil society of Cambodia;– Expedient law enforcement as well as upholding of the fundamental legal obligations of the State;– Build and strengthen the capacity of law enforcement personnel;– Protect witnesses and whistle-blowers as well as their families (make them safe);― 66 ―

– Witnesses and whistle-blowers protection programmes to be co-ordinated by the police;– Establish procedural protection measures;– Policy strategies (training in standard investigation; development of police ofﬁcers; and importanceof the investigation of witness reports).

VII. CONCLUSION
To sum up, the protection and cooperation of witnesses and whistle-blowers is essential to ensure
successful prosecution of corruption and organized crime. Cambodia already has legislation and othermeasures to protect witnesses and whistle-blowers and this is also a matter of government policy. In my
opinion, existing Cambodian legislation and measures are insufﬁcient in dealing with these matters. Effective
legislation and measures to protect witnesses and whistle-blowers should be enacted as soon as possible, as
well as strengthening law enforcement and building the capacity of law enforcement personnel who will
implement these mechanisms.

― 67 ―

SECURING PROTECTION AND COOPERATIONOF WITNESSES AND WHISTLE-BLOWERS
Trimulyono Hendradi＊

I. INTRODUCTION
The nature of corruption and organized crime nowadays, has transformed into extraordinary andsophisticated crime that intermingled with economic crime such as money laundering, fraud, or tax
embezzlement. Unfortunately, corruption has impacted to national stability and security of societies.
Therefore, the importance of witness become crucial in the investigation and prosecution of thecorruption cases, and they might provide great help for law enforcement ofﬁcer such as police and prosecutor
to reveal the case and put the perpetrator behind the bars. However, becoming a witness or reporting person is
not an easy task since they may face threats, intimidation, physical abuse, even death, not only for themselves
but also for their families, especially on crimes related with drug cartel or organized crimes.
Fighting against corruption is one of national objectives of Indonesian government; therefore theprotection of witness especially in corruption cases becomes a great concern of the government. This paper
will discuss the condition of witness and whistle-blower protection in Indonesia as well as the Indonesia
legislations enacted, in order to support the protection of witness and whistle blower and also obstacles andchallenges regarding the implementation of the law.

II. INDONESIAN LEGAL FRAMEWORK
A. Relevant Legislations
1. Law 13/2006 regarding the Protection of Witnesses and Victims
The Law is the foundation for protecting witnesses and victims. The law enacted in order to protect
the rights of witnesses and victims in the crime proceeding and in line with the article 32 and 33 of United
Nations Convention Against Corruption that stipulates the obligation for every state party to provide effective
protection for witness, experts, victims and reporting person from potential retaliation or intimidation
including his/her family or any person close to them. Indonesia has ratiﬁed this convention in 18 April 2006
by Law 7/2006.
Specifically Law 13/2006 defines any person who can obtain the protection and any assistance.
Pursuance to article 1, the person deﬁnes as follows:(i)
Witness is any person who is eligible to give testimony in accordance with preliminary
investigation, investigation, prosecution and in court examination regarding criminal cases that
they, by their own, hear, see, and/or experiencing.
(ii)
Victim is any person who suffers inﬂictions, physically and mentally, and/or economic loss
caused by a crime;(iii)
Family is any person who is blood and/or marital related to the witness or victim.
Where in the explanation of article 10 para.1 defines Reporting person as any person who provides
information to the law enforcer regarding criminal cases and crown witness is a witness who is also a suspect
who provides assistance to reveal criminal cases that he/she involves.
Furthermore, the law stipulates that witness and victim have rights as follows:(i)
Having protection for the security of his/her own life, family, and belongings, also free fromany threats regarding their testimony;＊

Prosecutor, Legal Bureau, International Legal Cooperation, Attorney General’s Ofﬁce, Republic of Indonesia.

― 68 ―

(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)

Participating in selecting any kind of protection or security support;
Giving testimony without any pressure;
A translator;
Free from any leading questions;
Any information regarding the case progress;
Any information regarding court decision;
Any information regarding the release of the convicted person;
Having new identities;
Having new place to live;
Access to counselor;
Having allowance during their protection until the protection program is over.

However, not every case would be placed under the protection program of witness and victims. The
protection program for witness is only given in some particular cases. The case that required protection will
be decided by the Protection of Witness and Victim Agency. Some particular crimes that might need
protection for their witness and victim are corruption, narcotics, terrorism, and any other crimes that put
witness and victims in endangered situation (the explanation of article 5 sub 2).
2. Law 31/1999 regarding Eradication of Corruption
As mentioned earlier, corruption in Indonesia has become extraordinary crime; therefore the task of
the law enforcement ofﬁcer is getting harder. The prosecutor has big challenge to bring the corruption caseevery successful for prosecution. Witness and reporting person become very crucial as they can provide any
data or testimony that may support the evidence of the case.
The necessity of securing witness and reporting person is stipulated by the Law 31/1999. Article 31(1) stipulates that “in investigation and examination before the court hearing, witnesses and any other persons
concerned with corruption cases shall be prohibited from mentioning the name or the address of the reporting
person, or other matters which may reveal the identity of the reporting person”. Where in the paragraph 2
states that “prior to the convening of a trial, the witness and other such persons shall be notified of theprohibition as referred to in paragraph (1)”.
For the obstruction of justice, the law criminalizes the perpetrator as stated in article 21 that “anyperson intentionally preventing or obstructing, or directly or indirectly make failure the investigation,prosecution and examination or the suspect or defendant or witness in corruption case, is liable to minimum
three years imprisonment and not exceeding of twelve years and/or ﬁne of Rp. 150,000,000 (one hundred andﬁfty million Rupiahs) and not exceeding of Rp. 600,000,000 (six hundred million Rupiahs). (source: http://
www.hamline.edu/apakabar/basisdata/2000/03/13/0022.html).
3. Law 35/2009 regarding Narcotics
The law 35/2009 was enacted by Indonesian government in order to face the illicit drugs crime that
become more sophisticated, transnational and supported by very stable organization. Every year the victim ofdrugs abuse is increasing, therefore the law should be more applicable to the current condition and situation.
Regarding protecting witness, the law stipulates in article 100 that witnesses, reporting persons,investigators, prosecutors and judges in regards of the narcotic crime shall have the protection by the statefrom any threat that endangered their life, and/or their belongings, before, during and after the proceeding ofcrime”.
4. Law 15/2003 regarding the Eradication of Terrorism Crime
The act of terrorism brings terror, fear, violence, and victims not only life but also belonging ofsociety. The post traumatic of terrorist attack in Indonesia was one reason for the government to enacted Law
15/2003. In the law, the state shall provide the protection for witness, investigator, prosecutor and judge andtheir families from the possibilities of any endanger threat (article 33) and like the law of corruption, law
15/2003 also criminalize the obstruction of justice as stipulated in article 20 that every person who use theforce or threat to intimidate investigator, prosecutor, lawyer and/or judge that may disturb the process of― 69 ―

crime is liable of minimum three years of imprisonment that not exceeding to ﬁfteen years of imprisonment.
B. Institution related to Witness and Victim Protection
The protection of witness and victim in the criminal justice system of Indonesia are in the stage ofinvestigation, prosecution and examining before the court. On every stage of prosecution, the law
enforcement has duty to secure their witness and victims. However, since 2006 as the government enacted
law 13/2006, the authority to securing witness and victims was also given to the new agency called Protectionof Witness and Victim Agency (PWVA).
Therefore the institution relates with the witness and victim protection as follows:
1. Investigator
During the investigation, Indonesian Police as investigator for major crimes must comply Law 8/1981
regarding criminal procedure law, that stipulates the investigator shall hand over the complete case brief, thedefendant and the evidence to the public prosecutor. And a complete case brief requires at least two witness
as one witness is not sufficient to prove that an accused is guilty of the act he/she conducts. In case, one
witness willing to give testimony however the other witness refuses to stand before trial in regards for his/her
safety, this means that the police only have one witness. Therefore, the requirement for witness protection in
the investigation stage is crucial. Though, the law does not stipulate speciﬁcally regarding the procedure toprotect and secure the witness, Indonesian police has resources, safe house and human resources to secure thewitness and victims in coordination with the PWVA.
Furthermore in article 113 of the Law 8/1981 regarding Criminal Procedure stipulates that underreasonable reason, a witness may not perform in the investigator’s summons, and then the investigator willvisit the witness to conduct the investigation. Law enforcement ofﬁcer may use the article in order to protect
the witness. Though the article does not clearly determines “the reasonable reasons”, a witness may only
absence under any reasons that admissible by the investigator for instance because of awareness of serious
threat.
2. Prosecutor
Also, regarding criminal procedure law mentioned above, it is the obligation of prosecutor to bring thewitness before the court for examining. Therefore, the prosecutor have burden to the witness presence. For
corruption case, the prosecutor also has authority to investigate, and the obtain witness to support theinvestigation, however, unlike the police that have resources to protect witness and victim, prosecutors do nothave resources to secure the witness and victim, for instance the safe house. Since prosecutors do not have thecapacity, generally prosecutors maintain cooperation with the police and the PWVA in securing their witness
before, during and after the court.
3. Judge
In examining the case, judges hear the testimony of witnesses. For the reason of the safety of thewitness, judges in a trial can deliver a decree that the witness shall be put under witness protection program.
Though it is not stated clearly, judges at trial have authority to do so.
In order to secure the witness, both Law of Criminal Procedure and Law 13/2006 regulate the absenceof the witness before the court in giving his/her testimony. Article 162 of the criminal procedure law stipulates
that testimony of the witness can be read before the court under several circumstances such as the witness ispass away, the location of the witness is far from the court, or may not present under reasonable reasons.
Furthermore, the sworn testimony that is read before the court has the same value with the testimony of theunder oath witness before the court.
Article 9 of Law 13/2006 protects witness who feels under serious threat, for giving testimony inwriting or by electronic devices. The writing testimony should be given before competent authority andshould be signed, while testimony by electronic devices should be made with the assistance of competentauthority. However the use of communications technology before court is not common in Indonesia. The
reason of this situation is because the use of technology must be supported by sophisticated technology. Lackof budget would constraint the use of technology before the court. This means that the witness must present― 70 ―

in the court, however to protect their safety, usually the court would be guarded by policemen on the base of
the level of security. Another obstacle is some judges do not familiar in examining witness testimony without
witness presence, especially in big cases, generally judge requires the witness to present before the court
therefore they can question the witness in person to ﬁnd the truth.
Furthermore, in article 176 of criminal procedure law states that if the defendant acts inappropriately
judge has authority to remove the defendant from the court, after judge warns the defendant and he/she do notlisten to judge. If the defendant continues to act improperly after warned by judge, then judge can remove thedefendant and made the decision without the defendant presence instead. Judges also have authority toremove certain spectators if they think that spectators’ presence will intimidate the witness in giving
testimony. Not even spectator, media as well.
Lastly, Judges also have discretion to lighten the punishment of a person who coordinates with law
enforcer in the successful of prosecution.
4. Protection of Witness and Victim Agency (PWVA)As stipulated in article 11, Law 13/2006, PWVA, established as an independent agency and shall be
responsible directly to the President. PWVA is a new agency that is put in the criminal justice system besides
investigator, prosecutor and judge. The objectives of the establishment of PWVA is to provide security forwitness and/or victim in order to give testimony in every stage of prosecution whether it is in investigation
stage, prosecution or examining before court. The protection is given to the person who will give thetestimony in court; in the progress of his/her testimony of after they give the testimony for a certain criminalcases.
In giving service to the community, PWVA takes the request from society who needs protection or
assistance by email, letter, and telephone, in person or through law enforcement. PWVA will register therequest and ask the person to complete the document. The requesting person must sign the letter of consent tofollow the legislation and requirement under the witness and victim protection program. During the program
the witness must not communicate in whatsoever way with any person unless under the PWVA permission.
After the person submit his/her request, within 30 days PWVA will consider the request has been completed
or not. If the person can comply the requirement, within 7 days PWVA will decide whether the request should
be granted or denied.
Up to 2009, so far PWVA has registered 84 requests as follows:
NO

CASES

1

YEAR
2008

2009

Corruption

3

19

2

Homicide1

103Land dispute

1

9

4

Domestic violence

︲

6

5

Torture and abuse

︲

4

6

Fraud and counterfeiting

︲

4

7

Sexual assault (rape)

2

3

8

Kidnapping

︲

2

9

Election crime

︲

2

10

Defamation

1

1

11

Shooting︲

3

12

Human rights abuse and environment

︲

1

13

Unlawful detention

︲

1

14

Bribery︲1― 71 ―

15

Unlawful act

1

︲

16

Embezzlement of migrant worker fund

︲

1

17

Money politic

1

︲

18

Malpractice

︲

1

19

Embezzlement and Money Laundering

︲

1

20

Negligence

︲

1

21

Interception

︲

1

22

The damage of pray house

︲

1

23

Mal administration of public service and law enforcement

︲

1

24

Selling of government asset

︲

1

10

74

Sum
Total

84 cases

Source: 2009 LPSK annual report

III. CURRENT SITUATION REGARDINGWITNESS AND VICTIM PROTECTION
A. Citation of Related Cases
1. Incompetency of PWVA
On 14 March 2009, a Director of state owned company was murdered in his car after playing Golf.
The victim was shot to death by two people. After investigation, the police found at least seven people
involved in the murder, one of them was media business tycoon, high ranking policeman, and the other was
the head of state commission. Police also found a key witness who was the wife of the victim. The police
secured the woman in a safe house; however controversy rose after the police protection. Should the woman
secured by PWVA as an independent agency? The police made an argument that it was their duty to secure
the key witness, on the other hand critiques was pointed to PWVA for the incompetency to secure the key
witness and victim.
2. Conviction of Whistle-blower
A high ranking policeman, report to the press about the enormous tax embezzlement scandal thatconnected to the employee of tax ofﬁce in Jakarta. The suspect has arrested and allegedly taking bribery frommany big companies. Unfortunately the whistle-blower was convicted and arrested for corruption cases
related to one of the company he reported. The general asked for protection in the safe house; however thepolice did not release the general to PWVA and argued that even though he was a whistle-blower he also asuspect for corruption case, therefore he could not get the protection under the witness and protection
program by PWVA.
The general asked for judicial review to the court of article 10 para.2, Law 13/2006 that stipulates awitness who also a suspect in the same case, may not be released from criminal charge if he/she is proofed
guilty, however his/her testimony can be used as consideration by the judge for lightened the sentence. He
argued that since he was a whistle-blower he could not be prosecuted on the same case. However the judges
came to the decision that the general may not be mitigate from his status as a defendant, however, if he foundguilty, the court will consider lightening the sentence.
B. Problems in Witness and Victim Protection Program
Both cases above show the problem regarding the implementation of the law of the protection witness
and whistle-blower.

― 72 ―

1. The Role of PWVA
Though, the existence of PWVA has been legalized in Law 13/2006 however the agency is rather new.
The case above has shown that as a new agency, PWVA has a big assignment in protecting witness andvictim, therefore, the existence of the PWVA must be supported by the other agencies such as Police,
Prosecutor, Judge and Lawyer. The failure of PWVA to protect the key witness does not mean that the agency
has incapability however there is a gap between the new law and agency with the older institution.
PWVA must be more aggressive in socializing its existence and build a good coordination andcooperation with the other institutions. In the ﬁrst example of case, the woman chose to go to the police forprotection rather than to PWVA, at the same time, the police did not report the condition of the women to
PWVA, as an agency that is responsible in protecting witness. It is shown that the existence of the agency isquite unfamiliar either in the society or among the government institutions.
2. The Protection of Whistle-blowers
Indonesia does not have the regulation related to the protection of whistle-blower. There is still acontroversy regarding the deﬁnition of whistle blower itself. Article 10 (2) Law 13/2006 only touches upon
witness who take position as a suspect as well, on the same case. The article clearly states that the witness
cannot be released from charge if he/she is proofed guilty, however his cooperation in revealing the casewould be considered by judge to lighten his sentence. One of the legal experts in Indonesia, Harkristuti
Harkrisnowo says the reason not to release the punishment is that there is a big concern of the condition as awhistle-blower might be used as an advantage by any person who conducts a crime to free from thepunishment. For instance a person who conducts the bribery might use his position as a whistle-blower toreport the case he involved to be released from his/her punishment.
Another Indonesian expert Yusril Ihza Mahendra says that the definition of whistle-blower inIndonesia has a different meaning. Whistle-blowers in Indonesia are not involved in the crime, where incommon law countries, a whistle-blower is a person who involved in the crime reporting his/her conduct tothe law enforcement.
Though the concept of whistle blower is not recognized in Indonesia, accordance with the progress torevise Law 13/2006, there is a big concern in the community to protect the whistle-blower in the future,
because the general as mentioned in related cases above had succeeded in revealing the corruption case ofbillion Rupiah.

IV. CHALLENGES IN SECURINGPROTECTION OF WITNESSES AND VICTIMSIn the future, in line with the transformation of serious crimes such as corruption and organized crime
to become more sophisticated and difﬁcult to reveal, the need to protect the witness will be more important.
At the same time, the challenges will be bigger as well. The challenges in protection of the witness as follows:
1. Different Perspectives among Law Enforcement
The different perspectives among law enforcement will become a crucial issue. The difference willlead to conﬂict between law enforcement; therefore the good coordination among law enforcement is salient.
So far, PWVA has signed some Memorandum of Understanding between another agencies and law
enforcement officers such as Attorney General Office and Police. Recently PWVA has signed Letter ofCommitment in Bali on December 1, 2010. In the future cooperation must be expanded to more agencies andinstitutions in order to show the existence of the PWVA and its authority among agencies but also to thecommunity in the protection of witness and victim, therefore in the future a Standard Operational Procedure
in protecting witness can be arranged between agencies.
2. Working across the Indonesian Territory
As a new agency, PWVA is demanded to broaden their area not only around the capital city because― 73 ―

serious crime such as corruption is conducted in every region, therefore the support from the government andlaw enforcement is needed. With the assistance from local government and law enforcement, PWVA may
work together to get access to rural community. Besides the support from the government regarding fund isalso needed, because it may be time consuming and money consuming in order to obtain data and toinvestigate witness who lives far from the head ofﬁce of PWVA.
3. Competent Human Resources
Securing protection of witness is not an easy duty, the competent human resources is needed tocomply the authority of PWVA. A well trained agent with good education background is the basic need of
PWVA, a person who not only has highly competency but also a good approach skill to the witness andvictim.
4. Technology Support
The support of technology is a needed in the courtroom, just in case a witness cannot testify directly
before the court. However applicable regulation also needed in supporting the use of technology in court
examine.

V. CONCLUSION
Preventing corruption and organized crime requires not only good investigation and prosecution of thecrime, but also the protection of the witness and victims. However, securing protection of witness it is not aneasy assignment, the coordination, cooperation and same perspective between law enforcement and related
agencies is needed. The enactment of Protection Witness and Victims Law and the agency in Indonesia is aturning point in the development of protecting witness.
Even though, Indonesia has some incapability regarding legislation and resources; however thechallenges would be eliminating in the future for instance by revising the law in the issue of whistle-blower
and reporting person.

― 74 ―RESOURCES
RI Law Number 8 year 1981 regarding Criminal Procedure
RI Law Number 35 year 2009 regarding Narcotics
RI Law Number 15 year 2003 regarding Eradication of Terrorism Crime
RI Law number 31 year 1999 regarding Eradication of Corruption
RI Law number 13 year 2006 regarding Protection of Witnesses and Victims
Kesaksian, Media Informasi Perlindungan Saksi dan Korban, Edisi 1 Januari-Februari 2010.
Abdul Haris Semendawai, SH, LLM, Program Perlindungan Saksi dan Tantanganya di Indonesia, Good
Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crimes.
Sent Rani Julianti to Independent Agency
http://www.primaironline.com/berita/detail.php?catid=Peradilan&artid=serahkan-rani-juliani-kepadalembaga-yang-lebih-netral
Key Witness under the Wrong Hand,
http://majalah.tempointeraktif.com/id/arsip/2009/08/24/LU/mbm.20090824.LU131228.id.html
Is Susno Deserved Protection?
http://www.antikorupsi.org/antikorupsi/?q=content/17411/layakkah-susno-dilindungi-sebagai-saksi
I am not a Whistle-Blower
http://www.mediaindonesia.com/read/2010/10/10/173514/16/1/-Yusril-Saya-bukan-Whistle-Blower
Indonesia does not have Regulation regarding Protection of Whistle-Blowers
http://www.mediaindonesia.com/read/2010/08/19/163244/16/1/Indonesia-tidak-Punya-UU-PerlindunganWhistle-Blower― 75 ―

SECURING PROTECTION AND COOPERATION OF
WITNESSES AND WHISTLE-BLOWERS: A LAO PERSPECTIVE
Vilayasinh Dainhansa＊

I. INTRODUCTION
As we all aware, the criminal proceeding can take long time, in some case one month, one year or
several years, depending on different circumstance or situation, to be closed. Sometime the prosecutors failed
to prosecute criminals, but most of the cases carried out in my criminal department we have successes. The
reason is that we have full cooperation of all participants participated in the criminal proceedings, especially
the witnesses. It is not easy to collect evidences needed. The public prosecutors or organizations responsible
for administration of justice do not know all ofﬁces and evidences related to any crime committed.
The administration of criminal justice is an important work of the public prosecutor and without thevoluntary and full cooperation of the public, medias, witnesses and whistle blowers the administration of
criminal justice would never successfully implemented; the offenders would never be prosecuted andconvicted. Like the courts, the prosecutors need firm evidence, which would be also a testimony of thewitnesses, to be able to perform the duty of prosecution of criminals and bring them to justice and to avoid
punishing innocent people who never have commit a crime and to ensure that the human rights in theadministration of justice are fully protected as the Constitution and the laws foreseen. Therefore, it is toconclude that the witnesses and or the whistle blowers are playing a signiﬁcant role in the administration ofjustice. And the criminal justice administrators needs their contributions to the conviction of the criminals andthey, they (the witnesses and whistle blowers) need a liable and full protection by the state.
The Lao government attaches the importance to the administration of justice and the national assembly
has adopted several laws such the penal law, criminal proceeding law, the anti-corruption law and others laws
being necessary and fundamental for the administration of criminal justice and has established theorganizations responsible for the administration of criminal justice which stated by the police, continue by the
public prosecutor and terminated by the court with the conviction or non-conviction of the criminals.

II. WITNESSES
A. Who Are the Witnesses?
Witnesses can be every person, who knows about or saw the incident constituting the offence or thecircumstances of the case. According to this general explanation, it is to understand that the witnesses areincluding the victims of crimes.
According to Article 32 of the Criminal Procedure Law, it is regulated that a witness is an individual
who knows about or saw the incident constituting the offence or the circumstances of the case. However, we
do not recognize that the victims of crimes are witnesses of the crimes, but they will receive other legal
protection. Person who are deaf, mute, or incompetent, children fewer than eighteen years of age, and relativeof the litigants can be brought to give testimony, but they shall not be deemed to be witnesses. What they say,
it is only for information for the investigators, public prosecutors and courts to trace the crime, or for moreinvestigations.
＊

Prosecutor, Deputy of the Head Division, Ofﬁce of the Supreme People’s Prosecutor, Lao PDR.

― 76 ―

The witnesses have the rights to give testimony; to see the record of his testimony, during theinvestigation stage; to request to modify or add to his testimony; to complain against the acts and orders of aninvestigator, and interrogation, a public prosecutor or the people’s court that he believes to be unlawful and toreceive protections under the laws and regulations from any threat to life, health or Property because of giving
testimony (Article 32 of the criminal Proceeding Law).
The witnesses do not have only rights, but they are obliged to perform some duties, such as to appear
according to an order or summons of an investigator, an interrogator, a public prosecutor, or the people’s
courts and to be liable for his refusal to give testimony or for any false testimony.
B. What Protection do they Receive from the State?
According to the Article 32 of the Criminal Procedure Law, The witnesses receive the protection
under the laws and regulations from any threat to life, health because of giving testimony. That is for instancea case if the accused or his relative or other persons try to kill or battery or injure the witnesses, they must be
punished by the state according to the law (Article 88 and 90 of the criminal law).
Article 58 of the Criminal Procedure Law prescribes that the identification of the criminal by thewitnesses shall be carried out under their secrecy and safety. When necessary, the investigator, or publicprosecutor shall require witnesses to identify individuals or confirm objects or dead bodies and theidentiﬁcation (in a way that) ensures the anonymity and safety of such person. Do not make the accused or
injure party to see the witnesses when he gives identify.
Article 62 of the criminal procedure law foreseen that the suspect will be detained and be not released
because of the witnesses safety. That is a case if the suspect may flee, destroy evidence, commit a newoffence, or hurt the injure parties or witnesses.
Likewise, it is also the regulation in the Article 66 of the Criminal Procedure Law. There is no pre-trial
release of the accused If is convinced that the accused or defendant will flee, will destroy evidence, willcommit further offences, will hurt witnesses. So public prosecutor may not pre-trial release the accused.
For their safety, in some cases witnesses may not disclose their name, address and others information
if it is not safe. In the court’s hearing, the court may be hearing the witnesses ﬁrst or after for his safety. It
does not allow the civil plaintiff, an accused or their relatives to see the witnesses.
Sometime the police, the public prosecutor or the people’s court will ask the witnesses for appear tothe hearing because of his safety.
Sometime the witnesses are refusing to come to the police station, public prosecutor’s ofﬁce or thepeople’s court to give testimony. They just pretend not to known any things about the offence. They always
say that when they come to the court or the police station or the public prosecutor or cooperate with them inbringing criminal to justice, they will lose their time, lose their money, and instead of having good things,
they would be brought to a circumstance of risk and non-safety. There was a road accidence case in 2009: Mr.
A was driving a car and then was hitting Mr. B’s motorcycle and then went away. Mr. C incidentally andhelped to take him to the hospital. Mr. A waked up, he said that Mr. C is an accused who was driving the car
and hitting him and was arrested. Before the police could prove the evidence, Mr. C was detained for twomonths.
Most criminal cases are successfully carried out in Laos without the assistances of witnesses because
there are enough physical evidences for prosecutor prosecute to criminal to the people’s court have enoughevidence and the accused have confessed to have committed a crime. There is no serious case and there is nocase where the witness is murdered or injured.
C. The Accused
As I mentioned above, the accused is not the witness of the case according to the law of Lao PDR.

― 77 ―

1. What is the Accused?
According to the Criminal Procedure Law article 28, the accused or defendant is an individual who
has been brought to Proceeding by an order to open investigations issued by an investigators or Public
Prosecutors.
The accused exercise the following rights to:
1)
2)
3)
4)

be informed of an offence against the charge made against him;
submit evidence;submit requests;
ask to see the documents in the case ﬁle, to make a copy of required documents from the ﬁle or
to make note of necessary information contained in the file, after investigation has been
completed;5) retain and meet with a lawyer or other protector to contest the case;6) participate in court hearings;
7) require the recusal of a judge, public prosecutor, interrogator, investigators, expert or translator;
8) complain against acts and orders of investigators, interrogators, public prosecutors or the people’s
court that he believe to be unlawful;
9) Make a ﬁnally statement in court hearings as the last party;10) Appeal against, or request the cancellation of an order of an investigator, an Interrogators, or
public prosecutor, or an instruction, order or decision of the people’ courts.
The accused performs following obligations to:
1)
2)
3)

Appear according to an order or summons of an investigator, an interrogator, a public prosecutor,
or the people’s court;
Provide testimony or explanations relating to the charge;
Comply with the regulations and orders of people’s court, in the court hearings.

Although the accused are not recognized as the witness after the law of law PDR, they will bereceiving some beneficiary by the state if they provide substantial cooperation in an investigation orprosecution of a case.
Article 40 of the Penal Law regulated circumstances conducive to reduction of penal law
responsibilities of the offenders. The court may reduction of penal responsibilities if an offender expresses
remorse and surrenders to ofﬁcials, and acknowledges and reveals offences committed by him and others. For
example, instead of getting 20 years of life imprisonment for the murder, the offender would be sentenced forthe murder for 10 years of life imprisonment for his or her substantial cooperation in giving information or
revealing the case; or the court may stay of his penalty for those offenders sentenced to less than three years
according to Article 47 of the Penal Law.
If there are no serious offences, investigators, public prosecutors, or the people’s court may not use
coercive measures such as detention (Article 61), arrest (Article 62), remand (Article 65), pre-trial housearrest (article 67), and suspension of position or duties(Article 68 of the Criminal Procedure Law).

III. WHISTLE-BLOWERS
A. Who are Whistle-blowers?
Whistle blowers are an individual or organization that know or see about of a person or governmentofﬁcial the report to the organization that concern to solve.

― 78 ―

The law of Lao PDR does not mention more about whistle blowers and it is not known in Lao PDR.
However, the laws regulate the provisions that the peoples who are the opinion that their rights are violated or
infringed; they can ask the concerned authorities to solve it. For the criminals case they can report it theconcerned authorities such as the police and the prosecutor for prosecution.
This is a right to guarantee a legal access to justice (rights to submit petition) and it is foreseen in
Article 41 of the Constitution of Lao PDR, Article 5 of Law on the Handling petition which is regulated
followings:
The state facilitates citizens and organization to exercise the right to petition, with the aim ofprotecting the interests of the state and collectives or (such citizen’s or organization’s) own rights andlegitimate benefits in order to ensure transparency and effectiveness of the state administrative
mechanism and government ofﬁcials in the implementation of their duties (there by) eliminating andpreventing negative occurrences in society.
Likewise, it is also the regulation of Article 18 of the Law on the Criminal Procedure.
To archive it, the State organizations have put the opinions boxes in front of their ofﬁces or in the
public places to ensure that people, who would like to report the illegal activities of any persons ororganizations, can exercise their rights without any fear or express their ideas if they think that theGovernment ofﬁcials (police) do something unlawful
The office of the Supreme people’s Prosecutor also has such a box, but it is on the fence near thepolice guard and was therefore, useless, because the people do not have courage to report illegal activities ofthe prosecutors because of fear of being recognized by the police. Therefore, it is planning to put it in the
public place. It will be comfortable and safety for the citizen to express their ideas if they think that the
government ofﬁcial (prosecutor) carry out unlawful activities. Moreover, the Ofﬁce of the Supreme People’s
Prosecutor has the division to examine the claim and report of the people. If the report is reasonable, aninvestigation will be undertaken and prosecuted if there is a criminal offence.
Likewise, the People’s Supreme Court has put the opinion box in place; however, until now there isno claims and report about any cases.
Importantly it is the hotline of the National assembly during its plenary sessions. There are many calls
and their names are protected and not disclose to the public. There is a committee being responsible for theinspection of the report. Then the concerned minister or authorities have to explain or reply to the question orconcerns.
B. State Protection of Whistle-blowers
According to the Article 7 of the Anti-corruption Law: Officials who conduct counter-corruption
operation as well as those who participate in such as reports, information providers, injured persons,witnesses, and experts, shall be protected from revenge, or threat to their life, health, freedom, honor,
reputation and property.
Any government ofﬁce who infringes any of the above-mentioned prohibitions will be subject to reeducation and disciplinary, and if the infringement constitutes an offence, shall be punished as provided in thelaws and has cause.
According to the Article 25 of the Anti-corruption Law: Prohibitions on person who has position,
power and duty to suppress, threaten, or obstruct any person who bring a claim, or provides feedback,including a person who provides negative information to concerned persons.
According to the Article 44 of the Anti-corruption Law: Individuals or organizations with outstanding
performance in the implementation of this law, particularly those that provide cooperation and information on
corruption, will receive the protection of security, rewards, and other policies-as appropriate.
The whistle blowers can be remaining anonymous and their name address and others personal
information will not be disclosed. The whistle blowers do not have duty to be liable for any things because of― 79 ―

their report. It does not matter whether the report is true or false.

IV. CONCLUSION
Although the Lao government has tried to put necessary legislations in place, to establish stateorganizations responsible for the administration of justice, there are still many things to be done.
There are no special laws on the witnesses and whistle blowers and therefore, it is also difﬁcult for theofﬁcials to implement the too general provision on the witnesses and whistle blowers protection in the realpractices. Some cases are solely relying on confessions of the suspected or accused, this is against the Article
21 of the Criminal Procedure Law, which regulated that the confession of the accused shall not form the basis
for the prosecution.
To ensure the full functioning of the administration of criminal justice and full cooperation of thewitness and whistle blowers in the country, it is necessary to do the followings:
1)
2)
3)
4)
5)

Creating law on the witnesses and the whistle blowers, which the provisions of their protection
are included;
Training judges and legal and law enforcement about these laws adopted and on Securing
Protection and cooperation of witnesses and whistle blowers.
Disseminating the important rights and duties of witnesses and whistle blowers by using
televisions, radios, newspapers, magazine and others means.
continuing services of the hotline of the National Assembly; andIncreasing the numbers of the opinion boxes in the public places.

― 80 ―

SECURING PROTECTION & COOPERATION OF WITNESSES AND
WHISTLE-BLOWERS
Moktar Bin Md Noor＊

I. INTRODUCTION
In our effort to ensure successful prosecution of organized crime and corruption, in Malaysia we havevarious laws and systems in place to protect witness and whistleblowers.
They are namely:a) Abduction and Criminal
Intimidation of Witnesses Act 1948 (Act 191)b) Witness Protection Act 2009 (Act 696)c) Whistleblower Protection Act 2010 (Act 711)d) Pleas in mitigation [ S. 176 (ii) (r) Criminal Procedure Code (Act 593) ]e) Plea bargaining [S.172C Criminal Procedure Code (Act 593) ]Witness protection is given upmost priority in our criminal justice system. This is evidently clear as itis being emphasized by the British colonial administration through the enactment of the Abduction andCriminal Intimidation of Witnesses Act 1947 (Ordinance no. 26 of 1947). We become a sovereign state aftergaining independent from Great Britain on the 31st August 1957 and the law contiuned to serve our criminal
justice system effectively. Then in 1977 it was revised by Act No.191 which became effective from 1 October
1977.
Then in 2009 a specially dedicated Witness Protection Act 2009 was enacted as Act No. 696 by ourparliament. This follows by Whistleblower Protection Act 2010 (Act No.711) as it was published in theGazette on 10 June 2010.
Besides the above mentioned three Acts, there are provisions in our Criminal Procedure Code (Act593) which provide for pleas in mitigation and plea bargaining.

II. WITNESS PROTECTION
A. Legislation
Witness Protection Act 2009 (Act 696) is a piece of legislation specially enacted in order to giveprotection to a threatened witness, before, during and after a trial, by a specially formed Witness Protection
Unit, an agency under Prime Minister’s Department. The Act was passed by the Parliament of Malaysia andgiven Royal Assent on 18 April 2009. Then it was published in the Gazette on 30 April 2009. This Act willcomes into operation on a date to be appointed by the Minister by notiﬁcation in the Gazette.
B. Objectives
The objective of the Witness Protection Act 2009 is to established a programme for the protection andassistance of witnesses or participants and for other matters connected therewith. Its also cover high risk
informer as a result of his assistance in a criminal investigation. Witness protection is usually required in trials
against organized crime, where law enforcement sees a risk for witness to be intimidated by colleagues ofdefendants or accused person.

＊

Superintendent, International Affairs/Special Investigation Unit, Royal Malaysia Police.

― 81 ―

C. Interpretation
In this Act, unless the context otherwise requires –・“enforcement agency” includes a body or agency that is responsible for the enforcement of laws
relating to the prevention, detection and investigation of any offence;・“Register” means the Register of Participants;
・“Director General” means the Director General of Witness Protection;
・“Minister” means the Minister charged with the responsibility for Witness Protection Programme;
・“Registrar” means the registrar of Witness Protection;
・“participant” means a witness who has been included in the Programme;
・“public authority” means the public authority as deﬁned in Clause (2) of Article 160 of the Federal
Constitution;
・“Programme” means the Witness Protection Programme established under this Act;・“criminal proceeding” includes any criminal trial or inquiry before a court or tribunal having criminal
jurisdiction, an inquest or inquiry into death and a police investigation under the Criminal Procedure
Code [Act 593], and any investigation by any other authority under any written law;
・“witness” means –a) a person who has given or who has agreed to give evidence on behalf of the Government in acriminal proceeding;b) a person who has given or who has agreed to give evidence, otherwise than as mentioned inparagraph (a), in relation to the commission or possible commission of an offence;c) a person who has provided any information, a statement or assistance to a public officer or anofﬁcer of a public authority in relation to an offence;d) a person who, for any other reason, may require protection or assistance under the Programme; ore) a person who, because of his relationship to or association with any of the persons referred to inparagraphs (a) to (d), may require protection or assistance under the programme.
D. Scope of Protections
The Director General shall take such actions, as he considers necessary and reasonable, to protect thesafety and welfare of a participant.
The action may include –a) providing accommodation for the participant;b) relocating the participant;c) applying for any document necessary to allow the participant to establish a new identity;d) providing transport for the transfer of the property of the participant;e) providing payment equivalent to the remuneration that the participant was receiving before being
included in the Programme including any increment to the remuneration which the participant
would have been entitled to, if he was not included in the Programme;f) where the participant is unemployed before being included in the Programme, providing payments
to the participant for the purpose of meeting the reasonable living expenses of the partiicipant
including, where appropriate, living expenses of the family of the participant and providing,whether directly or indirectly, other reasonable ﬁnancial assistance;g) providing payments to the participant for the purpose of meeting costs associated with relocation;h) providing assistance to the participant in obtaining employment or access to education;i) providing other assistance to the participant with a view to ensuring thar the participant becomes
self-supporting; andj) any other action that the Director General considers necessary.
E. Effectiveness
As Witness Protection Act 2009 (Act 696) is a new Act which creates a new government agency toimplement it, it is now in the process of setting up it own ofﬁce and making various appointment. The Act
will comes into operation on a date to be appointed by the Minister by notification in the Gazette soon
(December 2010). Therefore at the moment it is not possible to gauge the effect of the Act to the criminal― 82 ―

justice system in Malaysia. But it is no doubt that it will deﬁnitely give a positive impact in protecting andassisting witnesses and informers in Malaysia in future.

III. WHISTLE-BLOWER PROTECTION
A. Legislation
Another milestone in the effort to enhance the criminal justice system in Malaysia is the enactment ofWhistleblower Act 2010 (Act 711). The Act was enacted by the Parliament of Malaysia and given Royal
Assent on 2 June 2010. Then it was published in the Gazette on 10 June 2010. The Act will comes in force on
a date to be appointed by the Minister by notiﬁcation in the Gazette (on a later date).
B. Objectives
The objectives of the Whistleblower Protection Act 2010a) To combat
Corruption and other wrongdoings by encouraging and facilitating disclosures of improper conduct
in the public and private sector;b) To protect persons making those disclosures from detrimental action;c) To provide for matters disclosed to be investigated and dealt with; andd) To provide for other matters connected therewith
C. Interpretation
In this Act, unless the context otherwise requires –“Enforcement agency” means –a) any ministry, department, agency or other body set up by the Federal Government, State Government
or local government including a unit, section division, department, agency or body, conferred withinvestigion and enforcement. Functions by any written law or having investigation andenforcement powers;b) a body established by Federal Law or State Law which is conferred with investigation andenforcement function by that Federal Law or State Law or any other written law; orc) unit, section, division, department, agency of a body established by a Federal Law or State Law
having investigation and enforcement functions;“Public Body” includes–a) the Government of Malaysia.
b) the Government of State.
c) Any local authority and any other statutory authority.
d) Any department, service or undertaking of the Government of Malaysia, the Government of aState, or local authority; ande) Any company or subsidiary company over which any public body as is referred to in paragraph(a),(b),(c) or (d) has controlling power or interest.
・“Private Body” means an ofﬁce entity other than public body;
・“Improper Conduct” means any conduct which proved, constitutes a disciplinary offence or criminal
offence;・“Disciplinary Offence” means any action or omission which constitutes a breach of discipline inpublic body or private body as provide by law or in a code of conduct, acode of ethics or ocirculars or
a contract of employment, as the case may be.
・“Authorized ofﬁcer” means any ofﬁcer of any enforcement.
・“Whistleblower protection” means protection conferred to a whistleblower under this Act
・“detrimental action” includes–a) act of causing injury, loss or damage.

― 83 ―

b) Intimidation or harassment.
c) Interference with the lawful employment or livelihood of any person, including discrimination,discharge, demotion, suspension, disadvantage, termination or adverse treatment in relation to aperson’s employment, career, profession, trade or business or the taking of displinary action; andd) A threat take any of the actions referred to in paragraphs (a) to (c)D. Scope of Protections
A whistleblower shall, upon receipt of the disclosure of improper conduct by any enforcement agency,
be conferred with whistleblower protection under this Act as follows:a) protection of conﬁdential information;b) immunity from civil and criminal action; andc) protection against detrimental action (the protection shall be extended to any person related to or
associated with the whistleblower).
E. Effectiveness
Whistleblower Protection Act 2010 is a new law, it will comes into operation on a date to be appointed
by the Minister by notiﬁcation in the Gazette (in the future), therefore it effectiveness is yet to be measured
but it is no doubt that it will bring a positive effect in combating corruption and other wrongdoing in
Malaysia.

IV. IS “OBSTRUCTION OF JUSTICE” CRIMINALIZED?
A. Legislation
The answer is yes! “Obstruction of justice” is a criminal act in Malaysia.
Abduction and Criminal Intimidation of Witnesses Act 1947 (Act 191) is an Act enacted to handle thisissue. It was ﬁrst enacted in 1947 (ordinance no. 26 of 1947) and then it was revised in 1977 (Act 191 witheffect from 1 October 1977).
B. Objectives
This Act is to provide enhanced punishments for the offences of abduction and criminal intimidationin certain circumstances.
C. Interpretation
In this act, unless the subject or context otherwise requires –“criminal proceeding”
Includes any criminal trial or inquiry before a court or tribunal having criminal jurisdiction, andinquest an inquiry into a death, and a police investigation under the Criminal Procedure Code [Act 593]
For the purpose of this Act, the course of justice is impeded it any person from whom is required any
evidence testimony, statement or information in or for thr purpose of any criminal proceeding, ceases to beavaible to give such evidence, testimony, statement or information, or with holds such evidence, testimony,statement or information, or gives or fabricates false evidence.
D. Effectiveness
It is important piece of legistion in Malaysia which keep “obstruction of justice” at check ever since it
was enacted in 1947. Offenders are punished appropriately.
E. Punishment
It provide four types of offences/punishments for –Section 3. Offence
Abduction with intent to commit
Punishment― 84 ―

Shall be punished with imprisonment for a term which may extend to fourteen years and shall also be
liable to ﬁne.
Section 4. Offence
Abduction impeding the course of justicePunishment
Shall be punished with imprisonment for a term which may extend to fourteen years and shall also be
liable to ﬁne.
Section 5. Offence
Criminal intimidation to impede the course of justicePunishment
Shall be punished with imprisonment which may extend to ten years and shall also be liable to ﬁne.
Section 6. Offence
Abetments and attempts.
Punishment
Shall be punished with the punishment provided for that offence.

V. SYSTEM OF MITIGATION OF PUNISHMENT
A. Mitigation Factors
Section 176 (ii) (r) of the Criminal Procedure Code [ Act 593 ] makes speciﬁc reference to mitigating
factors. Among the accepted factors in mitigation of punishments after he is found quilty by the court andbefore passing sentence is the accused cooperation with the police (investigation stage) and the plea of guilty(prosecution stage).
The provision of mitigation may be regarded as a further safeguard to the accused.
B. Immunity Granted
There is a provision under Article 145 (3) of the Federal Constitution of Malaysia which stated that
the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any
proseedings before a Syariah court, a native court or a court – martial.
C. Is it Effectively Utilized?.
Yes! It is effectively utilized in Malaysia. Mitigation of punishment is for the court to consider while
the question of immunity is up to the Public Prosecutor to decide. But both are important instrument insecuring cooperation of key witnesses, including accomplice witnesses.
D. Plea Bargaining
It is the latest amendment to the Criminal Procedure Code (Act 593). Section 172C provides for plea
bargaining which can be done at any time before the commendment of the trial.
Two areas where plea bargaining are allowed –a) On the choice of the charge; orb) On the quantum of punishment
Accused plea guilty after the process of plea bargaining is considered as cooperation rendered andtherefore he is entitle for a leniency to the sentence.

― 85 ―

VI. STATISTICS/CASES
A. Witness Protection Programmes
Not in operation yet, therefore no statistic or sample case available.
B. Whistle-blower Protection Law
Not in force yet, therefore no statistic or sample case available.
C. Obstruction of Justice
There were cases and accused person being convicted under the Abduction and Criminal Intimidationof Witnesses Act 1947, especially under section 5, that is “criminal intimidation to impede the course ofjustice”, but the statistic is very low because the existing law has successfully act as a deterent to the likely
offender.
D. Mitigation of Punishment or Immunity
There is no statistic available but it is widely practice in Malaysia in order to secure cooperation fromkey witnesses, as where as, it is allowed by the law.

VII. CONCLUSION
Malaysia is always keeping abreast with the international community by having an effective
instrument of laws to protect and assist witnesses and whistleblowers in order to secure their cooperation.
These important elements of Good Governance is enshrined in Malaysia since 1947 until today. It formed avital part in our criminal justice system which managed to keep “obstruction of justice” at bay.

― 86 ―LEGISLATION RELATING TO PROTECTION AND
COOPERATION OF WITNESSES IN THE UNION OF MYANMAR
San Lin＊I. INTRODUCTION
Since a criminal case is built upon the evidence provided by witnesses, each and every statement of
witnesses is very important as it can change the course of the whole case. Witnesses play a crucial role in law
enforcement efforts to bring the perpetrators to justice. Often, however, witnesses are intimidated, threatened,
harmed and harassed to prevent them from speaking out. On the other hand, witnesses deviate from telling
truth because of being inﬂuenced by corruption and bribery. So that the need of witnesses protection can beclassiﬁed in two categories. The ﬁrst one is to protect the physical and mental security of the witnesses frombeing threatened, intimidated, harassed and harmed before, during and after investigation, inquiry and trial.
The second one is to prevent the witnesses from giving false statement and evidence to the responsibleofﬁcials, police ofﬁcers and the court during investigation, inquiry and trial. The role of witnesses is very
important in a trial and in the criminal justice system of every country. Witnesses are required, and secure
protection and cooperation of witnesses is essential to maintain the rule of law. Likewise, the whistleblowers
who disclose improper conducts, malpractices and wrongdoings of lawbreakers are also required for the
public interest. Legislation relating to establishment of witnesses and whistleblowers protection programme isrequired.

II. THE LEGISLATION RELATING TO PROTECTION AND
COOPERATION OF WITNESSES IN GENERAL
Though the particular law relating to protection and cooperation of witnesses has not been enacted in
Myanmar, there are some existing laws containing the provisions which have the nature and characteristics ofprotection and cooperation of witnesses.
A. Protection of Witnesses
To protect witnesses from being asked indecent, scandalous, vexatious, offensive questions, andquestions intended to annoy or insult them, Sections 151 and 152 of the Evidence Act provide as follows:
Section 151. The Court may forbid any questions or inquires which it regards as indecent or scandalous,
although such questions or inquires may have some bearing on the questions before the Court, unless they
relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts inissue existed.
Section 152. The Court shall forbid any question which appears to it to be intended to insult or annoy, or
which, though proper in itself, appears to the Court needlessly offensive in form.
In preventing and suppressing trafﬁcking in persons, to pay particular attention of women, children
and youth, preventive measures for women, children and youth is widely provided in the Anti Trafﬁcking in
Persons Law enacted in 2005. Under that law, the Deputy Attorney General is the head of Working Group on
Legal Framework and Prosecution Measures. One of the functions and duties of the Working Group is to lay
down and carry out necessary arrangements for the effective protection of trafﬁcked victims and witnesses inprosecuting cases under that law.
＊State Law Ofﬁcer (Director), Mon State Law Ofﬁce, Ofﬁce of the Attorney General, Union of Myanmar.

― 87 ―

In respect of safeguarding the rights of trafﬁcked victims, preventive measures are provided in that
law as follows:
Section 11. In order not to adversely affect the dignity of trafﬁcked victims:(a) if the trafﬁcked victims are women, children and youth, the relevant Court shall, in conducting the trialof offences of trafﬁcking in persons, do so not in open court, but in camera for the preservation of theirdignity, physical and mental security.
(b) with respect to trafﬁcking in persons, the publication of news at any stage of investigation, prosecution,
adjudication shall be made only after obtaining the permission of the relevant Body for the Suppressionof Trafﬁcking in Persons.
(c) person not involved in this case shall not be allowed to pursue or make copies of documents containedin the proceedings.
Section 12. The Central Body shall, if the trafﬁcked victims are women, children and youth, make necessary
arrangements for the preservation of dignity, physical and mental security.
Section 14. The Central Body shall arrange and carry out for the security of life of trafﬁcked victims andrepatriation and resettlement as much as possible.
Under section 16 of that law, with respect to the trafficked victims who are women, children andyouth, the Central Body and relevant Working Groups are responsible to give special protection of theirdignity and identiﬁcation and necessary security and assistance, and to give protection by keeping conﬁdential
the information relating to them.
Under section 19(e) of that law, the Central Body is responsible to lay down the security programmes
and to make arrangements for other rights entitled while the trafficked victims are giving testimony orcontesting a case.
Regarding hearing in camera, similar provision is provided in section 352 of the Code of Criminal
Procedure as follows:
Section 352. The place in which any criminal Court is held for the purpose of inquiring into or trying any
offence shall be deemed an open Court, to which the public generally may have access, so far as the same canconveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks ﬁt, order at any stage of any inquiry into, or
trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be
or remain in, the room or building used by the Court.
Under section 16 of the Brothel Suppression Act, 1949, if a person who is found having sexualintercourse or who is found in the circumstances visible for having sexual intercourse is produced as a witness
he shall be tried in camera.
Under section 66(e) of the Child Law, any person who commits the offence relating to inserting andannouncing information revealing the identity of a child who is accused of having committed an offence or
who is participating as a witness in any case, in the radio, cinema, television, newspapers, magazines, journals
or publications and displaying or making use of the photograph of the child without the prior consent of therelevant juvenile court shall, on conviction, be punished with imprisonment for a term which may extend to 2
years or with ﬁne which may extend to kyats 10,000 or with both.
B. Protection and Cooperation of Informers
In uncovering criminals and suppression of offences, getting information is crucial. However, if theinformer is to be identiﬁed in serious crimes, the person who knows the commission of an offence will notgive information relating to the offence as he is afraid of facing the danger made by the offenders as
retaliatory action.
To protect the safety of informers, section 125 of the Evidence Act provides that no Magistrate orpolice ofﬁcer shall be compelled to say whence he got any information as to the commission of any offence,and no revenue ofﬁcer shall be compelled to say whence he got any information of any offence against the
public revenue.
Similar provisions are inserted in some other laws to preserve the safety of informers and to get theircooperation in uncovering the commission of serious crimes.
Under section 8(j) of the Control of Money Laundering Law enacted in 2002, the Central Control― 88 ―

Board formed by the Government has the power to give necessary protection and giving reward to an
informer in respect of money and property obtained by illegal means.
As gambling leads malpractices, corrupt practices and commission of other offences, suppression ofgambling is crucial for community peace and law and order. To uncover and suppress gambling, cooperationof informers is essential. For this matter, section 20 of the Gambling Law empowers the Magistrate who tries
the case to pass order to give at least ﬁve hundred kyats, the money gained from forfeiture, or conﬁscation, or
the money gained from selling properties passed order to be confiscated under that law as reward to theinformer.
To impose more effective penalties on offenders in respect of offences relating to narcotic drugs andpsychotropic substances, and to cooperate with the States Parties to the United Nations Convention,international and regional organizations in respect of the prevention of the danger of narcotic drugs andpsychotropic substances, the Narcotic Drugs and Psychotropic Substances Law was enacted in 1993.
Under Rule 65 of the Rules Relating to Narcotic Drugs and Psychotropic Substances, the Central
Body may make such measures as may be necessary for giving reward to the following persons in respect of
an offence which action has been taken under the Narcotic Drugs and Psychotropic Substances Law, with theapproval of the Government:(i) a person who gives an information relating to a commission of an offence contained in the saidlaw;(ii) undercover informer;(iii) the persons who outstandingly make investigation, search and seizure to be able to seize thedrugs, materials and offenders involving in the offence.
C. Prevention of Corruption
Corruption diverts witnesses from telling truth and ruins fair administration, justice and the rule oflaw. To prevent corruption, the penalties are provided in sections 161 and 162 of the Penal Code.
Under Section 161 of the Penal Code, any public servant who takes gratification other than legal
remuneration in respect of an ofﬁcial act shall, on conviction, be punished with either description for a term
which may extend to 3 years, or with ﬁne, or with both.
Any person who takes gratiﬁcation in order to inﬂuence public servant by corrupt or illegal means
shall, on conviction, incur the similar punishment under Section 162 of the said Penal Code.
To provide more effective penalties for corruption, the Suppression of Corruption Act, 1948 wasenacted.
If any public servant by corrupt or illegal means or by abuse of his ofﬁce as a public servant obtains
for himself or for any other person any valuable thing or pecuniary advantage, he is said to commit theoffence of criminal misconduct in the discharge of his duty under section 4(1)(c), 4(2) of the said Act, and heshall be punished with imprisonment for a term which may extend to 7 years and all the gains found to havebeen derived by him, by the commission of that offence shall be liable to be forfeited to the State.
Regarding suppression of corruption, more severe punishments are provided in later laws.
Under section 46 of the Forest Law enacted in 1992, any forest staff who, by reason of his power
accepts from any person cash or kind in a corrupt manner or in contravention of the law and participates andconspires in extracting, moving or unlawfully having in possession forest produce in a wrongful manner shallbe punished with imprisonment which may extend from a minimum of 1 year to a maximum of 7 years.
Under section 25(a) of the Control of Money Laundering Law, any member of the Investigation Body
who demands or accepts money or property either for himself or for any other person as a gratiﬁcation in
investigating money laundering offence shall, on conviction, be punished with imprisonment for a term which
may extend from a minimum of 3 years to a maximum of 7 years and may also be liable to a ﬁne.
Similar punishment is provided in section 30 of the Anti Trafﬁcking in Persons Law for any publicofﬁcial who demands or accepts money and property as gratiﬁcation either for himself or for another person
in carrying out investigation, prosecution and adjudication in respect of any offence under that law.
More severe punishment is provided in section 18 of the Narcotic Drugs and Psychotropic Substances
Law. Under section18 of the said law, any person who is authorized to search, arrest, seize exhibits andinvestigate in respect of any offence under that law, and guilty of asking and accepting any money and― 89 ―

property as gratification either for himself or for another person shall, on conviction, be punished withimprisonment for a term which may extend from a minimum of 5 years to a maximum of 10 years and may
also be liable to a ﬁne:
D. Tender of Pardon to Accomplice for Making Approver or State Witness
In serious crimes involving more than one offender where there is no reliable evidence or witness,making an accomplice approver or State witness is helpful to enable effective conviction of principal
offenders. For this matter, section 337(1) of the Code of Criminal Procedure empowers the Magistrate notlower than the Magistrate of first class to tender a pardon to a person supposed to have been directly or
indirectly concerned in or privy to the offence on condition of his making a full and true disclosure of thewhole of the circumstances within his knowledge relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof.
Rule 66 of the Attorney General Rules made under the Attorney General Law, 2001 empowers Law
Ofﬁcers to tender conditional pardon to the accused for making him State witness in accordance with theprovisions contained in section 337 of the Code of Criminal Procedure.
Section 19 of the Gambling Law empowers the Magistrate to make a person involving in the offence
contained in that law prosecution witness and tender him a pardon in accordance with the procedures.
Section 14 of the Brothel Suppression Act,1949 empowers the Magistrate to examine a person who is
not a principal offender among the persons prosecuted under that law as a witness relating to the offence. The
person who is involved in the offence under that Act and he has made a full and true disclosure of the wholeof the circumstances relating to the offence within his knowledge to the satisfaction of the Magistrate shall beentitled to receive an acknowledgement certificate from the Magistrate under section 15 of that Act. So
receiving, he shall be exempted from being punished under that Act.
E. Immunity from Prosecution
To enable effective prevention and suppression of serious crimes including terrorism, financing ofterrorism, transnational organized crimes and crimes related to money laundering and to enable rendering ofassistance in criminal matters in accordance with international conventions, regional and multilateralagreements the Mutual Assistance in Criminal Matters Law was enacted in 2005. Under that law, immunity
for witness from prosecution is provided as follows:
Section 31. The Central Authority shall, if the person who is to give testimony, statement or expert opinion
in any foreign State has committed any offence previously in the Requested State, within 15 days or if it
exceeds 15 days from the date of arrival at the said State and making report thereof, raise the issue to get prioragreement with the said State so as not to prosecute, detain, punish or restrict personal liberty in the said State
with respect to the previous offence, during the period agreed upon by the two States.
Section 35. The relevant government department and organization shall not prosecute, detain, punish or
restrict personal liberty of a person sent by a foreign State with respect to any offence committed by him
previously in the Union of Myanmar within 15 days or if it exceeds 15 days from the date of arrival andmaking report thereof, during the period agreed upon between the two States while he is in the Union of
Myanmar to give testimony, statement, expert opinion or in person, in accordance with this law.
Under section 13 (a) of the Anti Trafﬁcking in Persons Law, the trafﬁcked victims are exempted frombeing taken action for any offence under that law.
F. Prevention of Witness from Turning Hostile
In many cases, it is on the basis of the evidence given by witnesses that the State initiates theprosecution process. Because of inadequate protection given to witnesses, they are inﬂuenced to change theirearlier statements. To prevent witnesses from turning hostile by telling lie, police officers making an
investigation into an offence, as the statement made to the police ofﬁcer is an inadmissible evidence, forward
the crucial witnesses to the Magistrate for recording the statements of the witnesses before commencement of
the trial. If the earlier statement to the Magistrate and the later statement made to the Magistrate during thetrial contradict each other, action can be taken to the witness for giving false evidence.
Punishment for giving false evidence is provided in section 193 of the Penal Code as follows:― 90 ―

Section 193. Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricatesfalse evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished withimprisonment of either description for a term which may extend to 7 years, and shall also be liable to ﬁne:and whoever intentionally gives or fabricates false evidence in any other case shall be punished withimprisonment of either description for a term which may extend to 3 years, and shall also be liable to ﬁne.
G. Obstruction of Justice
The legislation addressing the use of physical force, threats or intimidation or promise, offering or
giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the
production of evidence can be found in the Penal Code.
Under section 352 of the said Penal Code, whoever assaults or uses criminal force to any person
otherwise than on grave and sudden provocation given by that person shall be punished with imprisonment ofeither description for a term which may extend to 3 months or with ﬁne or with both.
Under section 506, whoever commits the offence of criminal intimidation shall be punished withimprisonment of either description for a term which many extend to 2 years, or with ﬁne, or with both; and if
the threat be to cause death or grievous hurt, or to cause the destruction of any property by ﬁre, or to cause an
offence punishable with death or transportation or with imprisonment for a term which may extend to 7 years,
or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term
which may extend to 7 years, or with ﬁne, or with both.
Under section 507, whoever commits the offence of criminal intimidation by an anonymous
communication, or having taken precaution, to conceal the name or abode of the person from whom the threat
comes, shall be punished with imprisonment of either description for a term which may extend to 2 years in
addition to the punishment provided for the offence by the above mentioned section.
The penal provisions relating to the use of physical force, threats or intimidation to interfere with theexercise of ofﬁcial duties by a justice or law enforcement ofﬁcial are provided in the Penal Code as follows:
Section 186. Whoever voluntarily obstructs any public servant in the discharge of his public functions shallbe punished with imprisonment of either description for a term which may extend to 3 months, or with ﬁne orwith both.
Section 189. Whoever holds out any threat of injury to any public servant, or to any person in whom hebelieves that public servant to be interested, for the purpose of inducing that public servant to do any act, or
to forbear or delay to do any act, connected with the exercise of the public functions of such public servant,shall be punished with imprisonment of either description for a term which may extend to 2 years, or withﬁne, or with both.
Section 228. Whoever intentionally offers any insult, or causes any interruption to any public servant, while
such public servant is sitting in any state of a judicial proceeding, shall be punished with simple imprisonment
for a tem which may extend to 6 months, or with ﬁne which may extend to one thousand kyats, or with both.
The punishment for assault or criminal force to deter public servant from discharge of his duty is an
imprisonment for a term which may extend to 2 years or with ﬁne, or with both under section 353 of the Penal
Code.

III. CONCLUSION
Nowadays, many developed countries all over the world have developed their legislation bypromulgating protection and cooperation of witnesses laws containing the provisions relating to various
preventive measures and necessary arrangements for the witnesses who are under threat, intimidation and indanger. In Myanmar, since occurrence of offences harmful to the physical and mental security of witnesses
retaliated by offenders is rare, so far, the particular law relating to protection of witnesses has not been stillpromulgated. But, when the situation requires, Myanmar may consider to promulgate the special law relating
to protection of witnesses.

― 91 ―

THAILAND’S WITNESS PROTECTION PROGRAMME
Mr. Kerati Kankaew＊

I. INTRODUCTION
Nowadays, we cannot deny that there are a large number of crimes. Undoubtedly, crimes are
increasing in number. This is caused by many factors as the world has been developing dramatically.
Technology and state-of-the- art invention play an important role in current crimes. Crimes have changed as
the world has developed. The more development in technology, the more sophisticated crimes. This surely
adds more difﬁculty for authorities to enforce the law. States cannot overlook this movement and in fact they
have to develop the law to protect our societies from those sophisticated crimes. Today, we have criminal law
as our weapon. To prove that a person has committed crimes, evidence must be clearly shown. Evidence canbe witnesses, documents and hard evidence. There is a serious problem when a witness does not want totestify against a criminal due to fear for his own safety or even his or her family’s safety.
The doctrine of “Witness Protection” comes from an idea to support criminal case proceedings. In the
judicial system, no matter what proceeding system a state uses, a judge is always the one who is capable ofruling a judgment. Evidence is the most important source for a judge to rule a case lawfully. A state has theduty to ensure that criminals must be sentenced according to the state’s law. To do so the state needs witnesses
to testify in a criminal proceeding; however, the state also has a duty to ensure and provide protection to thewitness. It is easy to understand that no one would want to do a thing for the state if, by doing so, it would
cause harm to himself or his family. If a state cannot enforce the law by bringing criminals to justice, its
citizens will not believe and trust in the state’s governing power, resulting in a failure socially or evennationally.

II. WITNESS PROTECTION
A. Meaning of “Witness Protection”“Witness” means a person who commits himself/herself to be present at, or give evidence to acompetent ofﬁcial for investigation, a criminal interrogation, a court for criminal proceedings, and includes
an expert but not a defendant who himself/herself is a witness.
“Security” means security in life, body, health, liberty, honor, property or any lawful rights of thewitness before or at the time of or upon becoming a witness.
“Witness Protection” therefore means the method providing to a witness ensuring his or her safety andhis or her family, including everything that he or she is entitled to have by law, in exchange for a witness’s
testimony.
B. Objective of Witness Protection– For a competent ofﬁcer to understand the law and perform his or her duty efﬁciently.
– For a competent ofﬁcer to realize his or her authority and power imposed by law, in order for the ofﬁcer toperform the highest level of protection in each case.
– To predict the number of witnesses in criminal cases in the future by planning and ﬁnding solutions against
any potential obstacles beforehand.

* Deputy Chief Public Prosecutor, Pattaya Prosecutor Ofﬁce, Thailand.

― 92 ―

C. Method, Authority Power and Duty
The Law “the Witness Protection Act BE 2546” (2003) provides for two strategies.
1. General Provision Strategy
This is the more common strategy. According to the Section 6 of the Act, in a case where a witness
loses his or her security, a competent ofﬁcial from criminal investigation, interrogation, prosecution or the
Witness Protection Bureau, as the case may be, shall desire for the witness protection measures as deemed
appropriate or as requested by the witness or other concerned party. Where necessary, the said person may
request a police ofﬁcer or other ofﬁcial for protection and this must be subject to the witness’s consent.
Protection measures may include arrangements for a safe place for the witness; or change of name/family name, domicile, identification, and information that would reveal the identity of the witness as
appropriate, and the personal status of the witness and the nature of the Criminal case.
The protection of witnesses in general doesn’t apply to the witness only but can also be used for thoserelated to the witness. In a case where a witness’s husband, wife, progenitor, descendant, or person with aclose relationship to the witness is affected by the person becoming a witness and would lose security, he/she
may request the competent official to design or arrange for measures as deemed appropriate, taking into
account the consent of that person.
Protection measures may include arrangements for a safe place for the witness; or change of name/family name, domicile, identiﬁcation, and information that would reveal the identity of the witness as deemed
appropriate, and the personal status of the witness and also the nature of the criminal case.
2. Special Protection Measures
A witness in the following [types of] cases may be eligible for the privilege of special protection
measures:– A case under the law on narcotic drugs, money laundering law, anti-corruption law, or customs law.
– A case related to national security under the Penal Code.
– A sexual offence under the Penal Code relating to the luring of a person for the sexual gratification ofanother.
– A criminal offence in the nature of organized crime under the Penal Code, including any crime committed
by a criminal group with a well-established and complicated network.
– A case punishable with at least ten years of imprisonment.
– A case that the Witness Protection Bureau deems appropriate to arrange for protection.
Whenever there are explicit circumstances or suspicion that a witness has lost his/her security, thewitness or other concerned party, a competent investigation official, competent interrogation official orcompetent criminal case prosecution ofﬁcial shall apply to the Minister of Justice or his appointed ofﬁcial toarrange for special protection measures, subject to the witness’s consent.
D. Special Witness Protection Detail
The Witness Protection Bureau shall arrange for one or more of the following special protection
measures:– A new place of accommodation.
– Daily living expenses for the witness or his/her dependents not exceeding one year, with extensions asnecessary for three months each time, not exceeding two years.
– Coordination with the relevant agencies in order to change the ﬁrst name, family name and information that
may contribute to knowledge of the personal identity of the witness, including arrangements for a return tooriginal status.
– Action to help the witness have his/her own career, and training, education and other means of proper
living for his/her life.
– Assistance or action on behalf of a witness for his/her lawful rights.
– Arrangements for a bodyguard service for a necessary period of time.

― 93 ―

– Other actions to assist and support a witness with his/her security as appropriate.
E. Possible Benefits
The Witness Protection ofﬁcial can utilize the information and knowledge acquired from protecting
the witness to further the case.
This would aid in the planning and determining the protection of the witness, making witness
protection more efﬁcient.
F. Principles for Witness Protection
The Witness Protection Bureau has rights and authority as follows:– Determine the necessity to authorize the use of Witness Protection for the witness.
– Specify or comment regarding the protection measures to be used.
– Set rules and regulations for the witness to follow while under protection and if witness violates any rulesthat would result in the termination of the witness protection.
– Determine which department or ofﬁcial would be in charge of providing protection to the witness and also
the location in which the witness would be protected.
– Determine the necessary weaponry, transportation, equipment and other utilities.
– Set a budget, and total funds to be used in providing protection to the witness.
– Set regulations and guidelines in requesting funds used in protection of the witness.
– Investigate and follow up on the witness protection and also on the expenses requested for the protection.
– Request the witness or any others related to give a statement or request further documentation/evidence toaid in the authorization of the protection of the witness.
– Delegate a sub-committee to pass judgment or carry out tasks set by the board.
– Assess and order the termination of a certain witness protection programme.
– Assess and order the modiﬁcation of the protection methods or of the regulations set.
– Assess and order the authorization of continued witness protection or terminate the witness protection.
– Assess and order the authorization or termination of witness protection authorized prior to new regulations
regarding witness protection in criminal cases.
G. Witness Protection Center
The Department of Special Investigations (DSI, a division of the Ministry of Justice) Regulations
regarding the Witness Protection in Criminal Cases gives authority to the Ofﬁce of Special Operations to be
the Witness Protection Center and has rights and authority as follows:– Administration and management of the Board of Witness Protection.
– Inspect the petition for witness protection ﬁled.
– Assess and offer comments to the Board of Witness Protection.
– Input and ﬁle data of witness protection.
– Coordinate and follow up on the witness protection.
– Collect and follow up on data received to be presented to the Board of Witness Protection for further
assessment.
– Inspect and give opinion regarding the expenses of a witness protection such that it is appropriate and most
efﬁcient.
The Witness Protection Center is also responsible for ﬁling a petition regarding the reward budget andexpenses. It is also responsible for acquiring the necessary equipment, transportation, tools and other up-todate technology to be used in the witness protection and the training, development and improving of thestrategy utilized in witness protection.

― 94 ―

Data of Witness Protection
Number of Witnesses
Year
Under Protection
2004
1Completed

Remaining

1

0

2005

15

4

11

2006

4

0

4

2007

2

1

1

2008

11

4

7

2009

11

4

7

2010

25

0

25

Total

69

14

55

Diagram showing procedures in obtaining protection

III. PROBLEMS, OBSTACLES AND POSSIBLE SOLUTIONS IN WITNESSPROTECTION
A. Problems and Obstacles in performing Witness Protection
Laws regarding witness protection in criminal cases were only recently established. This is because
witnesses in criminal justice cases usually have a problem of coming to court to testify or give false testimony
altering the truth due to the fear of their lives, possessions and that of close relations, by means of threats,
abuse from those who have direct impact from the case such as powerful ﬁgures, or relatives of the defendant
all of which effects the criminal justice process as justice is lost by not being able to bring the criminal to bepunished by law. Furthermore people who are to become witnesses and also the officials responsible forproviding protection of the witnesses’ do not fully understand the boundaries, the rights, authority and meansof witness protection as there is no clear procedures to follow. It requires ofﬁcials with experiences in witness
protection giving priority to the safety of the witness. The problem in offering witness protection can befurther categorized in two sections as follows:
1. Problems and Obstacles received from the Witness under Protection
In order to receive protection the witness must perform and live within certain sets of rules andregulations set prior to the protection being given, resulting in a change and discomfort to their normal life
causing witnesses to reach boredom if the court proceedings consumes large periods of time.
Witnesses under protection are given a sum of money as a reward and an allowance is given to those
closely related to the witness, the witness is also given an allowance used in purchasing food, paying for thelocation of stay, and other vital expenses in their daily lives. This can sometimes cause some witnesses to takeadvantage of requesting funds that are used in an inappropriate manner.
2. Problems and Obstacles faced by Witness Protection Ofﬁcials
There is lack of the man power to perform the protection voluntarily. This is because it is seen as
something that doesn’t require any skill, knowledge to perform, the commanding ofﬁcials also do not show a
lot of importance and care towards it. This job doesn’t provide progress in a government ofﬁcial’s career.
Also the lack of female ofﬁcials to perform the witness protection is a problem as DSI is currently faced withlarge numbers of female witnesses which is only proper if the protection was given by a female ofﬁcial.
There is also lack of the coordination between the investigating ofﬁcials and the witness protection― 95 ―

ofﬁcials, resulting in an inability for the protection ofﬁcials to predict the dangers that the witness could face
and the means to counter it. This also includes problems that could occur to the witness such as illness, family
related problems, ﬁnancial problems, mental health etc. as the protection ofﬁcial has to try to correct alone.1
No established training course or programmes are available to give knowledge to the witness
protection ofﬁcials. Currently ofﬁcials rely on their own experiences in operating the protection causing alack of standardized means of providing protection to witnesses.
Some operations require protection of the witness for a year, or many years before the witness is able
to testify in court, leading to the ofﬁcials becoming bored and unable to perform other tasks.
B. Possible Solutions– Define clear set of protocols regarding the payment for the expenses required in the operation, to theofﬁcials and the witness according to the rights by law. This is to ensure that the ofﬁcial is able to performtheir duties fully and able to control the budget for expenses for the witness with great efﬁciency.
– Provide support for the ofﬁcials in witness protection that shows great potential and knowledge in this ﬁeld
as it is a job that requires a lot of patience, good wit/senses, skilled in the art of conversation to talk to thewitness, and must be able to solve problems that had just occurred straight away. Provide a possible
progression in career as an incentive for the ofﬁcials to continue performing their job.
– Give the power for DSI officials to have a part in deciding and correcting problems of the witness inconjunction with the protection ofﬁcials. This is so that the problems that occur can be dealt with correctly,
not time consuming and suitable.
– Should provide a shift rotation of protection ofﬁcials so that ofﬁcials can also go on other operations andperform other duties as assigned by their commanding ofﬁcers and wouldn’t cause the ofﬁcials to becomebored in protecting the witness.
– Organize training for DSI ofﬁcials regarding the rules and regulations in Witness Protection and also ﬁeld
training in the methods and possible ways to protect witness, skills in proper handling of ﬁrearms to ensurea single standard in giving protection to witnesses.
C. Protection of Persons who provide Useful Information relating to Government Officers’ Corruptionin Thailand
Corruption of ofﬁcials in government agencies has long been a serious problem for Thailand; hence itis essential to ﬁnd the appropriate mechanisms and measures to solve this problem. Monitoring is one of theimportant rights of people in order to participate in this matter by reporting activities which involve
corruption. However, it relies on a person acknowledging and highlighting activities that are likely to be in
conﬂict with the public interest or of persons at a higher level within an organization which can be detrimental
to that person’s career.
Whistleblowing is not only an act of revealing a serious problem in the internal administration of anorganization, but also a tool that will bring evidence to legal proceedings of an accused. Nevertheless,whistleblowing comes with a high risk of retaliation for the whistleblower.
A signiﬁcant factor encouraging whistleblowing is the measure protecting those disclosing informationfrom any activities that may harm their lives, bodies and freedom and it will, deﬁnitely, help ensure people
enthusiastically reveal information. Moreover, the offering of benefits in addition to protection will be an
additional tool to persuade people to reveal information. Government must legislate and implement whistle

1 All Departments involved with witness protection, fall directly under the control of the Ministry of Justice. As witness protection
policies are relatively new to Thailand, the levels and channels of cooperation between the various departments involved, with the
aspects discussed in this paper are still to a degree being developed. Many of the relationships between different Bureaus andDepartments are currently a little complicated and may go through more than one department, based upon personal contacts toachieve the desired result. More formal channels for inter department cooperation are currently being developed, which should
enhance the effectiveness of these programs in due course.

― 96 ―

blower protection law into practice which will, in time, create the environment to support whistleblowing.
People expect a well-organized system and procedure for whistleblower protection law, and if such exists,
people in possession of wrongdoing will feel safe to disclose information.
Unfortunately, currently the protection law is not adequate because a non-government agency must be
founded to create principles and policies for the process of protection and to play an additional role as an
authority to protect the whistleblower. It apparently seems that the prevention of corruption within an
organization requires the establishment of legislation for whistleblower protection, which will not only beneﬁt
the country in the development of proﬁcient skilled ofﬁcers to solve problems related to corruption and unity,
but also save the country’s resources (funds and human resources) by founding of a new non-government
agency to oversee whistleblower protection. Finally, it will be good for the country by helping to encourage
conﬁdence through the general populace in Government authority.
Thailand introduced legislation in 2008 to cover many aspects of corruption in Government agencies
with sections 53-57 focusing on protection of the Whistleblower. These sections allow the Office of the
National Anti-Corruption Commission to provide initial protection to a witness and grants authority forallocation of protection to an accused person, a witness or another involved party, as well as family members
or others closely known to the whistleblower who may be at risk. Allocation of funding to a protected party is
decided and allocated by a committee. In cases where the information is especially important or sensitive, thecommittee is empowered to take additional measures to ensure the reputation and credibility of the witness isalso assured, in addition to physical safety. In the case of Government employees where the nature of theinformation disclosed may prejudice their continued employment in the same role or ofﬁce, special measures
are available to ensure their career will not be adversely affected by their revelations. The act also allows forthe committee to allow a person who reveals information to be granted immunity from prosecution and to beentered into the witness protection programme. Penalties both ﬁnancial and custodial exist for any person
who reveals or discloses information about the identity or whereabouts of any protected person.

― 97 ―

SECURING PROTECTION AND COOPERATION OF WITNESSES AND
WHISTLE-BLOWERS
Nguyen Nhu Nien＊

I. INTRODUCTION
Ensuring the safety and cooperation of witnesses and other persons disclosing the offence, named
whistleblowers, has always been considered as one of the most decisive factors for the success of theinvestigation, prosecution, and adjudication of criminal cases. Therefore, many countries in the world,
including Vietnam, have issued many legal documents and practical measures to create favorable conditions
for the participation of witnesses and whistleblowers. In respect of international laws, the protection for andthe cooperation with the witnesses and whistle-blowers has been increasingly of importance. Someinternational legal documents, such as United Nations Convention on Transnational Organized Crimes orUnited Nations Convention against Corruption, have already had some binding provisions toward its member
to effectively protect witnesses and persons disclosing crimes.
This presentation will brieﬂy introduce policies and speciﬁc legal provisions of Vietnam to protect
witnesses and whistleblowers. Also, the effectiveness of the implementation of these policies and legal
provisions in the context of Vietnam shall be thoroughly discussed. Finally, some recommendations onpractical measures to enhance the effectiveness of the protection for the witnesses and whistleblowers in thetimes coming shall be presented.

II. DOMESTIC AND INTERNATIONAL LAWS ON PROTECTION OF
WITNESSES AND WHISTLE-BLOWERS
According to the deﬁning provision of the Criminal Procedure Code 2003 of Vietnam (CPC 2003), thewitnesses is the persons knowing some details, which are meaningful for the investigation and adjudication ofa criminal case, and he/ she has been summoned by bodies conducting criminal proceedings to participate in
the case to present his/her statements (Article 55 CPC2003). The witnesses’ participation in the case, which istheir legal responsibility, is under the decision to summon of the body conducting legal proceedings (Article
133 CPC 2003). So far, Vietnam has acceded, and being the state member of United Nations Convention on
Transnational Organized Crimes or United Nations Convention against Corruption, it has full obligations andresponsibilities to ensure the safety and cooperation of the witnesses and whistleblowers.
In conjunction with the process of expanding the guarantee of human rights in legal proceedings, theprovisions on witnesses has been changed in the direction of humanizing the relationship between the state
and witnesses, expanding rights of witnesses and legal undertakings for such rights. The demand on
combating corruption and organized crimes effectively is the main momentum for such a process. The legal
provisions on protecting witnesses is one of the main factors to enhance the truth and values in terms of
prooﬁng for the witnesses’ statements because that can exclude the main reasons for the false statements,
disclaim the initial statements of the witnesses – the fear for being revenged. At the same time, it mightactively affect the enforcing authorities’ activities in legal proceedings. In the context of combating organizedcrimes in Vietnam, this struggle can only gain success if legal bases on protecting the witnesses are
established and fully implemented.

＊

Public Prosecutor, Department on Exercising the Right to Public Prosecution and Supervising the Investigation of Criminal Cases
involving National Security, The Supreme People’s Prosecution Ofﬁce, Vietnam.

― 98 ―

The legal provisions relating to witnesses are legalized and provided in the ﬁrst Criminal Procedure
Code of Vietnam 1988. However, these provisions only concern on responsibilities of the witnesses without
ensuring their legitimate rights and interests. If the witness does not come under summon, he/she can belegally subjected for the production, or even be prosecuted if he/ she refuses or hides from taking thetestimonies. In order to address the demands from the struggle against crimes, some extra rights of thewitnesses have been supplemented to the current CPC 2003 as compared to the CPC 1988. Accordingly, CPC
2003 provides some new rights of the witnesses such as the right to request the body which has summoned
them to protect their life, health, honor, dignity, property and other legitimate rights, the right to makecomplaints on the decision or actions of bodies, or persons conducting legal proceedings, and the right to get
the refund for transportation expenses and other costs as provided by legal provisions (Article 55 CPC 2003).
To adapt more effectively to the context of the struggle against drug offence, Article 14 in the Law on
Preventing and Combating drug 2000 of Vietnam has provided that the persons who disclose crimes, thewitnesses, the victim, and their family members are all protected. In fact, not only the people who disclose
crimes, witnesses, the victims, but also their parents, husband/wife, children are also subject to the threat ofbeing attacked by drug criminals. The reality shows the activeness and the necessity of these provisions, tocreate an effective and obvious change in the struggle against drug offence over the past years.
However, the reality of the activities in criminal proceedings in Vietnam shows that the ensuring forthe safety and cooperation of the witnesses and whistleblowers still has some shortcomings: some social
surveys in Vietnam show that the witnesses, the victim, and the relatives are still afraid of being face to face
toward the accused, their friends and relatives in the adjudication process at trial. These face to face occasions
might be out of control of the body conducting legal proceedings, such as outside the Court, in the corridor of
the Court room when waiting for the trial commencing. Some kinds of forcing the witnesses not to cooperatewith the body conducting legal proceedings via giving false statement or disclaiming previous statement havebeen found in some localities and become more popular and sophisticated. These factors are rooted in somegrounds, both subjective and objective ones.
A. In Terms of Legal Provisions
In spite of playing a very important role, the obligations of witnesses and whistleblowers are heavier
and many more than the legitimate rights and interests offered. The witnesses can be produced in case of
absence without legitimate grounds or causing difﬁculties for the investigation and adjudication. In case ofrefusing to give statement without legitimate reasons, they might be subjected to criminal prosecution under
Article 308 of the Penal Code 1999; in case of giving false statement, they might be subjected to criminal
prosecution under Article 307 of the Penal Code 1999. The CPC 2003 has not created legal grounds toencourage the witness to actively implement their citizenship – to cooperate with the State in the struggle toprevent and combat crimes and clarify the truth of the case.
As compared to legislation on criminal procedure of many countries in the world, the CPC 2003 ofVietnam has no provisions on the relation based on the spirit of cooperation between witnesses and body
conducting criminal proceedings. For example, the CPC 2003 provides many obligations and responsibilities,
but not a single provision on bonus for the witnesses in case of good cooperation with body conducting legal
proceedings. This legislation has no organic relationship between them and bodies conducting legal
proceedings.
Consequently, the trials in Vietnam can still take place without the participation of the witnesses. In
practice, there are some cases that the witness cannot attend the trial for some causes: when the trial takes
place, the witness has died, or suffered from such serious sickness that he/ she cannot move, but these arevery rare, just simply because the witness does not want to attend the trial because of several reasons.
Although the law provides that the collegiate bench might decide to defer or continue the trial in case of
absence of the witness (Article 192 CPC 2003), this provision does not give an explanation in which
circumstance that the trial can be deferred or continued. This general provision has led to unsystematic
behavior that the trial can still be taken place without the participation of the witness, even in some case there
is a unique witness.
The CPC 2003 of Vietnam has just realized the right of the witness to request the authority to protect
their life, health, honor, dignity, property and other legitimate rights and interests in criminal proceedings.

― 99 ―

However, the CPC 2003 has not provided in details the specific methods, procedures applicable, and thecorresponding guarantees, so that it turns to be general and has not taken into its full play in adjudication. For
instance, Article 211 CPC 2003 provides that “in case of necessity to protect the witnesses and their relatives,the collegiate bench must decide on measures to protect them according to legal provisions”. This is very
formal and general, since it is not clear about which measures and legal provisions are. In other words, there
have not been speciﬁc legal provisions and policies to protect witnesses and whistleblowers.
The researching provisions of CPC 2003 show that the status of the witness is much lower than that ofthe defendant or the accused. In spite of implementing legal obligations for public interests, the witnesses andtheir relatives might face disadvantages in the future; even being subjected to criminal prosecution based on
their statements that they must not refuse. In some criminal cases, the witness has become the defendant.
This can be explained that a Vietnamese legal proceeding is a process. At first, since there is not enoughinformation, the witness can be summoned, but when there is enough information about his/her connection tothe offence, he/she can be subjected to the prosecution. As compared to many countries in the world, this isquite different. These foreign laws provide that the exemption can be applicable for the victim, civil plaintiff,
civil defendant, the suspect, the defendant and the witness. Even, it is not allowed to take testimony from: thejudges, priests, the defense counsel, the accused, Members of Parliament.
Apart from these issues, there has not been synchronization with other legislations (such as Labor Law, Law
on Public servants, Law on anti corruption, Civil Code, Law on protecting and fostering for children, Law on
denunciation) in ensuring the safety and cooperation with the witnesses and whistleblowers.
B. From the Body, Person conducting Criminal Proceedings
The criminal procedure law provides the task, power of body conducting criminal proceedings incollecting, analyzing evidence to construct grounds for convicting of a person. The person conducting legal
proceedings can summon person knowing about the offence and listen to their presentation about the relating
issues. However, it is not always that the role and status of witnesses in the inquisitorial model of Vietnam isproperly appreciated because the laws provide that the truth on crime can be determined from different
sources. In the CPC 2003, there are no provisions on responsibility of authorized persons in criminal
proceedings in ensuring the witness’ rights; thus, in practice, the violation of their rights still takes placesometimes.
C. From the Witnesses
The witnesses cannot often be aware of their role in the struggle on preventing and combating crimes.
Many Vietnamese witnesses think it is a waste of time, income and only leads to troubles. In reality, it is veryrare that the witnesses make complaints about the behavior of the investigator, prosecutor, or the judge, whohave forgotten to explain their legitimate rights and interests, or just about inadequate and incorrect
explanations. If any, these complaints also fall into the situation of being very long proccessed or of no
response.

III. SOME RECOMMENDATIONS TO ENHANCE PROTECTION FORWITNESSES AND WHISTLE-BLOWERS IN VIETNAM– Amending, supplementing the CPC 2003 in the direction that:+ Providing speciﬁc measures to ensure the witnesses’ rights;+ Synchronizing with other legislation (such as Labor Law, Law on Public servant, Law on anti
corruption, Civil Code, Law on protecting and fostering for children, Law on denunciation);+ Providing the bonus for the witnesses since many current provisions are formal only;+ Providing the sanction on giving unsuitable statements in the direction on limiting criminal
prosecution, and providing more on administrative sanctions;― 100 ―

+ Providing the mechanism to effectively protect the witnesses since the application of current
measures to protect the witnesses has not been regulated consistently, thus leading to unsystematicalapplication. At the same time, it is necessary to provide protections for witnesses’ relatives.
+ Providing the classiﬁcation of the witnesses and whistleblowers, so that they can beneﬁt from theirrights as legally provided (the juvenile, ethnic people or foreigners).
– Carrying out the propaganda within enforcing authorities and the public about the content of theprotection for witnesses and other persons disclosing offence in criminal proceedings.
REFERENCES
1. Criminal Procedure Code 2003 of Vietnam. 2004. Hanoi: Publisher of Justice.
2. Law on Preventing and Combating drug 2000 of Vietnam. From
http://www.luatgiapham.com. Retrieved November 28th 2010.
3. Penal Code 1999. 2009. Hanoi: Publisher of National Politics.

― 101 ―DISCUSSIONS AND RECOMMENDATIONSDISCUSSIONS AND RECOMMENDATIONS
The discussion sessions were chaired by Mr. Claro Arellano, Prosecutor General of the Republic of
the Philippines.
Mr. Haruhiko Ukawa, Deputy Director of UNAFEI, sat as Co-Chair, and Mr. Trimulyono Hendradi,from Indonesia, sat as Vice-Chair.
Topic (i): Effective legislation and measures to protect witnesses.
Regarding effective legislation, the participants addressed the beneﬁts of accession to the UNTOC and
its Protocols and accession to the UNCAC. Ms. Kramer, the Visiting Expert from the UNODC, noted theimportance of the conventions and protocols in furthering witness and whistle-blower protection indeveloping countries. The UNTOC, in Article 24 (1), requires States Parties to take appropriate measures toprotect witnesses, and in Article 24 (2), provides for measures which may be included in such protective
action. The UNCAC, meanwhile, in its Article 33, requires States Parties to consider taking appropriate
measures to protect reporting persons. The participants later engaged in a comprehensive discussion of theseissues under topics (iii) and (ii) respectively, below.
Regarding effective measures, Mr. Ukawa drew attention to the police protection procedures that canbe employed in the ordinary course of police duties, without the need for special advanced measures forwitness protection. There was a consensus that such regular police protection is important, especially forwitnesses who are not subject to comprehensive witness protection programmes.
A roundtable discussion elicited the particular elements of witness protection provided in eachcountry, such as testimony via video-conferencing and use of pre-trial statements as evidence. It transpiredthat many such procedures are not employed as a matter of course in the participating countries. The
participants discussed procedural protection measures at the trial stage, particularly measures to reduce faceto-face confrontation with the defendant, which can be provided to any witness in the usual course of thecriminal justice procedure.
Regarding the removal of the defendant during witness testimony, and video recording of testimony atthe pre-trial stage, as available in Germany, the participants carefully considered the importance of balancing
the protection of witnesses with the due process rights of the defendant.
Participants also considered at length the exclusion of the media from court hearings, as the presenceof the media is necessary to ensure that justice is seen to be done, but over-exposure can make witnesses
easily identiﬁable.
The participants next considered comprehensive witness protection programmes, where ordinary
protection measures are not sufﬁcient. Relocation, change of identity and ﬁnancial assistance are provided byabout half of the represented countries, while psychological support, medical care and protection of relatives
are less widely available.
Mr. Ukawa drew attention to the opinion of Ms. Kramer that it was not the location (i.e. responsible
agency) of the programme that was important, but rather its autonomy, independence and competence, andthat these factors were vital to ensuring the neutrality of the programme.
Ms. Kramer noted that the confidentiality of such programmes is best served by their operational
separation from normal police departments. Mr. Arellano emphasized the importance of conﬁdentiality, which
he said was the cornerstone of all witness protection programmes.
Following on from a detailed discussion of police involvement in witness protection programmes, it
was nevertheless observed that witness protection is a tool for the prosecutor, and that the prosecutor is in thebest position to determine the value of any evidence. Threat assessment is also important however, andcountries must consider for themselves who is best placed to make that assessment.
The participants also noted that minor or child witnesses may require further special measures as per
the United Nations Convention on the Rights of the Child.

― 105 ―

Topic (ii): Mitigation of punishments and/or immunity grants for persons who provide substantial
cooperation in an investigation or prosecution.
The UNCAC, in Article 37(2), requires States Parties to consider mitigating punishment in appropriate
cases. Most of the represented countries do provide for mitigation of punishment, but few provide for
immunity grants from prosecution.
Mr. Ukawa reminded the participants of the difference between mitigation or leniency and theprovision of witness protection. While mitigation or leniency is given in exchange for truthful cooperation,
witness protection is not: it simply removes obstacles to full cooperation by witnesses. If any witness
protection programme is to have public support and legitimacy, it must not encourage lying or be seen to
reward criminals. During court proceedings, the defence will raise questions about a protected witness’s
credibility and motivations – the prosecution must be able to ensure that this will withstand scrutiny.
Topic (iii): Criminalization and punishment of obstruction of justice.
As noted above, one of the UNTOC’s most significant provisions is in Article 23, which requires
States Parties to criminalize the obstruction of justice. Likewise, the UNCAC, in its Article 25, requires States
Parties to criminalize the obstruction of justice.
The participants again discussed in a roundtable format whether or not their respective countries had
criminalized the obstruction of justice, if so, how they had done it, and the punishment which exists for thecrime. Half of the represented countries had criminalized the use of coercive means of obstructing justice,
while fewer than half had criminalized the use of corrupt means.
Despite enacting such legislation to criminalize obstruction, the participant from Malaysia explainedthat the authorities there still encounter challenges in its enforcement.
Topic (iv): Effective legislation and measures to protect whistle-blowers.
The UNCAC provides a range of measures, preventive and enforcement, which are important for
whistle-blower protection.
Ms. Zimmermann, the Visiting Expert from Germany, and Mr. Ukawa advised participants that it isimportant to remember that whistle-blower protection is a separate issue to witness protection. Whistleblowers do not necessarily become witnesses in criminal proceedings, and the protection needed for whistleblowers as such is more limited in scope. In Germany and Japan, whistle-blower protection falls undercontract or labour law rather than criminal law.
A participant from the Philippines noted that this issue has a cultural dimension, as whistle-blowing isclosely related to exposing corruption in government, and it is therefore important for countries which
recognize that they must address corruption to protect whistle-blowers.
Similarly, to tackle corruption as effectively as possible, the participants agreed that whistle-blowing
in both public and private sectors should be addressed.
Finally, it was noted that even if witness or whistle-blower protection is excellent, corrupt or
intimidated judges can still fail the pursuit of justice and hence that good governance is essential. In thisregard, Mr. Ukawa advised the participants of the publication of the Report of the First Regional Seminar on
Good Governance for Southeast Asian Countries, held in Bangkok, Thailand, in December 2007, which
addressed “Corruption Control in the Judiciary and Prosecutorial Authorities”.

― 106 ―

RECOMMENDATIONS[UNTOC & UNCAC]
1. The United Nations Convention against Transnational Organized Crime (UNTOC) and its Protocols, andthe United Nations Convention against Corruption (UNCAC) are the main international legal instrumentsin the fight against organized crime and corruption. They cover a wide range of measures, including
witness protection, and establish a framework for further international cooperation. Accession to theseconventions should be duly considered and is hereby encouraged. Appropriate measures to protect
witnesses should be taken as required by the UNTOC and the UNCAC.
2. The use of force, threats or intimidation, and the promise, offering, or giving of undue advantage toinduce false testimony or to interfere in the giving of testimony in relation to criminal offences seriously
undermine witnesses’ willingness and ability to produce accurate evidence and testimony. Such use offorce, threats, and inducements should be duly criminalized in accordance with the UNTOC and the
UNCAC, and such penal provisions should be properly enforced.
[General Recommendations]
3. Every actor in the criminal justice process has a role to play in witness protection. Adequate training forcriminal justice personnel should be provided on protection measures and attendant ancillary procedures.
4. Various measures and ideas that do not require enabling legislation or changes in the existing law, such asproviding separate waiting rooms and prompt disposition of pending trials, can substantially reduce therisks to and burdens of witnesses. Such measures and ideas, within available resources, should beconsidered to the extent practicable.
5. Special attention should be paid to the needs of vulnerable witnesses, particularly children.
[Police Protection]
6. Police measures to ensure the physical security of witnesses should be in place and duly applied.
Depending on the level of the threats involved, enhanced security measures, such as temporary relocationand closer protection, should be applied when necessary.
[Procedural Protection]
7. Court procedures that allow witnesses to testify without fear and in a manner that ensures their safety
should be available in accordance with each country’s domestic law. In the application of such measures,due consideration should be given to balancing the need to protect the witnesses and to ensure thedefendant’s due process rights. Such measures may include the following:・Removal of defendants;
・Removal of particular spectators and/or media;
・Use of pre-trial statements of the witness;
・Limiting disclosure of personal and identifying information of the witness;・Shielding the witness from the defendant and/or from spectators;
・Disguising the face and/or distorting the voice of the witness;
・Allowing accompanying persons during testimony;・Allowing testimony via videoconferencing or other communication technology.
[Witness Protection Programmes]
8. Where there is a serious threat to the witness’s security as a result of his or her cooperation with thecriminal justice authorities that cannot be addressed by other protection measures, a formally establishedcovert programme that provides for, among other things, the relocation and change of identity of thewitness may be established. Because of the signiﬁcant state resources required to operate the programme,
and the dramatic changes to the life and privacy of the witness, relocation and change of identity should
be considered a measure of last resort. Admission to the programme should be voluntary, and the consent
of the witness should be required.

― 107 ―

9.

In order to safeguard their neutrality, it is advisable that, regardless of their location in the government,
witness protection programmes should be specialized and be separated from the investigation andprosecution functions. However, close coordination with various criminal justice authorities including thepolice, prosecution, judiciary and prison administration, and other governmental authorities, such as
housing, health, and security, is also called for.
10. Witness protection programmes should operate on the basis of strict conﬁdentiality.
11. Adequate funding should be allocated by state budgets to ensure the effective functioning andsustainability of witness protection programmes.
12. Particular care should be taken to ensure that the protection and the support provided by the programme
are not seen as a reward for the witness’s cooperation and testimony.
[Mitigation of Punishment]
13. Mitigation of punishment and grants of immunity from prosecution encourage accomplices and “insiders”
to supply useful information and testimony. Providing for the possibility, in appropriate cases, of
mitigating punishment or granting immunity to persons who provide substantial cooperation in theinvestigation and prosecution of criminal offences should be duly considered.
[Whistle-blower Protection]
14. Public and private sector employees who, in good faith and on reasonable grounds, report facts
concerning possible criminal offences to competent authorities play an important role in bringing to lightand providing an opportunity to tackle unlawful conduct. Due consideration should be given to adopting
appropriate measures to protect such persons from unjustiﬁed treatment.
[Sharing of Experience and Enhancement of Understanding]
15. Notice should be taken of assistance and information provided by the UNODC, notably its publication
entitled “Good Practices for the Protection of Witnesses in Criminal Proceedings involving Organized
Crime”.
16. International fora, such as UNAFEI ’s Regional Seminars on Good Governance, allow for thedevelopment of international dialogue and the exchange of experiences and good practices, andparticipation is therefore encouraged. It is important that participants share and disseminate the content ofsuch programmes with their colleagues at home.

― 108 ―

PARTICIPANTS, VISITING EXPERTS AND ORGANIZERS

A. Participants
International Participants
Ms. Philippe Nil

Director
Legal Education and Dissemination Department
Ministry of JusticeCambodia

Mr. Trimulyono Hendradi

Public Prosecutor
International Legal Co-operation Division
Attorney General’s Ofﬁce
Indonesia

Ms. Vilayasinh Dainhansa

Prosecutor
Deputy of the Head Division
Ofﬁce of the Supreme People’s Prosecutor
Lao P.D.R.

Mr. Moktar Bin Mohd Noor

Superintendent
International Affairs/Special Investigation Unit
Royal Malaysia Police
Malaysia

Mr. San Lin

State Law Ofﬁcer (Director)
Mon State Law Ofﬁce
Ofﬁce of the Attorney General
Myanmar

Mr. Kerati Kankaew

Deputy Chief Public Prosecutor
Pattaya Public Prosecutors Ofﬁce
Thailand

Mr. Nguyen Nhu Nien

Prosecutor
Department of Exercising the Right to Public Prosecution
and Supervising the Investigation of Criminal Cases
Involving National Security
VietnamPhilippine Participants
Mr. Claro Arellano

Prosecutor General
Ofﬁce of the Prosecutor General
National Prosecution Service
Department of Justice

Mr. Martin Meñez

Acting Program Director
Witness Protection Program― 109 ―

Ofﬁce of the Witness Protection Program
Department of Justice
Mr. Rommel Baligod

Regional Prosecutor, Region II
Ofﬁce of the Witness Protection Program
Department of Justice

Ms. Nerissa Carpio

Assistant Program Director
Witness Protection Beneﬁt and Security Program
Department of Justice

Ms. Susan Dacanay

Senior State Prosecutor
National Prosecution Service
Department of Justice

Mr. Cesar Merin

Provincial Prosecutor
Province of Leyte
Department of Justice

Mr. Al Calica

City Prosecutor
Kidapawan City
Department of Justice

Ms. Anely Burgo

Social Welfare Ofﬁcer IV
Department of Social Welfare and Development

Ms. Chery Mainar

Social Welfare Ofﬁcer III
Department of Social Welfare and Development

Mr. Ramil Quinto

Executive Director
Anti-Graft Division
National Bureau of Investigation

Mr. Eduardo Villena

Chief
Legal Division
Criminal Investigation and Detective Group
Philippine National Police

Mr. Lindley Santillan

Legal Ofﬁcer
Committee on Justice
Senate of the Philippines

Mr. Cecilio Laurente

Legal Ofﬁcer
Committee on Justice
Senate of the Philippines

Mr. Renante Basas

Director IV
Commission on Human Rights

Mr. Vic Escalante, Jr.

Graft and Investigation Ofﬁcer
Ofﬁce of the Ombudsman― 110 ―

Philippine Observers
Mr. John Felix

Chief
Legal Division
Parole and Probation Administration
Department of Justice

Mr. Owen De Luna

Acting Assistant Staff Service Chief
Inspection, Monitoring and Investigation Service
National Police Commission

Mr. Expedito Allado

Division Chief
Case Management Division
Legal Affairs Service
National Police Commission

Mr. Emmet Rodion O. Manantan

Legal Ofﬁcer IV
Anti-Money Laundering Council

Mr. Froilan L. Cabarios

Legal Ofﬁcer II
Anti-Money Laundering Council

B. Visiting Experts
Ms. Karen Kramer

Senior Expert
Division for Treaty Affairs
United Nations Ofﬁce on Drugs and Crime

Ms. Anne Katharina Zimmermann

Public Prosecutor
Legal Desk Ofﬁcer
Division RB2 – Criminal Procedure (Court Proceedings)
Federal Ministry of JusticeGermany

C. Adviser
Mr. Robert E. Courtney III

Department of Justice Attaché
Embassy of the United States in the Philippines

D. Organizers
UNAFEI
Mr. Masaki Sasaki

Director

Mr. Haruhiko Ukawa

Deputy Director

Mr. Naoyuki Harada

Professor

Ms. Kumiko Izumi

Professor

Ms. Yoshiko Chihara

Senior Ofﬁcer― 111 ―

Mr. Takayuki Suzuki

OfﬁcerMr. Shinichi Inoue

Ofﬁcer

Ms. Grace Lord

Linguistic Adviser

Organizing Committee of the Philippines
Mr. Severino H. Gaña, Jr.

Senior Deputy State Prosecutor
National Prosecution Service
Department of Justice

Ms. Deana Penaﬂorida Perez

Senior State Prosecutor
National Prosecution Service
Department of JusticeMs. Gilmarie Fe S. Pacamarra

State Prosecutor
National Prosecution Service
Department of Justice

Ms. Mari Elvira Bote Herrera

State Prosecutor
National Prosecution Service
Department of Justice― 112 ―

SEMINAR SCHEDULE
7 December

Opening Ceremony
Opening Address by Mr. Masaki Sasaki, Director, UNAFEI
Address by the Honourable Mr. Fransisco F. Baraan III, Undersecretary, Department ofJustice, Republic of the Philippines
Special Address by His Excellency Mr. Makoto Katsura, Ambassador of Japan
Introduction
Introductory Remarks by Mr. Haruhiko Ukawa, Deputy Director of UNAFEI
Introductory Remarks by Mr. Severino H. Gaña, Jr., Senior Deputy State Prosecutor,
National Prosecution Service, Department of Justice, Republic of the Philippines
Individual Presentation by Mr. Rommel Baligod, Regional Prosecutor, Region II,
Ofﬁce of the Witness Protection Program, Department of Justice of the Republic of thePhilippines
VE Presentation, UNODC
Individual Presentation, Cambodia
Individual Presentation, Indonesia
Individual Presentation, Lao PDR
Individual Presentation, Malaysia
Individual Presentation, Myanmar

8 December

Individual Presentation, Thailand
Individual Presentation, Vietnam
Individual Presentation, Senate of the Philippines
VE Presentation, Federal Ministry of Justice, Germany
Adviser’s Presentation, Embassy of the United States in Manila

9 December

Discussion
Adoption of the Recommendations
Closing Ceremony
Address by Mr. Masaki Sasaki, Director, UNAFEI
Closing Address by the Honourable Mr. Fransisco F. Baraan III, Undersecretary,
Department of Justice, Republic of the Philippines.

― 113 ―

APPENDIX

PHOTOGRAPHS◦Commemorative Photograph◦Address by Undersecretary Baraan◦Introductory Remarks by Deputy Director Ukawa◦Introductory Remarks by Senior Deputy State Prosecutor Gaña
◦Presentation by Visiting Expert◦Discussion Session(Co-chaired by Prosecutor General Arellano and Mr. Ukawa)

UNAFEI

Commemorative Photograph

Address by Undersecretary Baraan― 116 ―

Introductory Remarks by Deputy Director Ukawa

Introductory Remarks by Senior Deputy State Prosecutor Gaña

― 117 ―

Presentation by Visiting Expert

Discussion Session (Co-chaired by Prosecutor General Arellano and Mr. Ukawa)― 118 ―