December 7, 2010

Fourth Regional Seminar on Good Governance for Southeast Asian Countries

Securing Protection and Co-operation ofWitnesses and Whistle-blowers

Haruhiko UKAWA, LL.M.
Deputy Director, UNAFEI

It is my pleasure to open the discussions at the Fourth Regional Seminar on Good Governancefor Southeast Asian Countries. This year’s seminar topic, “Securing Protection and
Co-operation of Witnesses and Whistle-Blowers”, has two components to its subject matter:measures to secure protection, and measures to secure co-operation. 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 thenproceed to explain the relevant laws and practices in Japan.

A. 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 forit. The ability of witnesses to fully co-operate 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 terroristgroups, 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 co-operating 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-1-

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 and within 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 protection 2 and;(4) witness protection programmes. 3
We invited Ms Karen Kramer, a Senior Expert at the United Nations Office on Drugs and Crime,to speak to you about witness protection generally. She will provide you with an excellent
overview including the background, objectives, and key features of witness protection
programmes.

B. Securing Co-operation 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 organizedcrime 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 the most culpable to criminal activity that can beproven in a court of law.
In order to encourage and facilitate the co-operation of such people, a number of countries
allow authorities to offer leniency or immunity in exchange for co-operation, information, and1“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.

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truthful testimony. There is a growing recognition of the effectiveness and usefulness of suchpractices, 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 have participated in the commission of an offence … to supply
information useful to competent authorities 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 or prosecution 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 toa person who provides substantial cooperation in the investigation or prosecution of an
offence….
In some countries, notably the United States, plea bargaining and co-operation plea
agreements between prosecutors and witnesses/defendants are widely utilized. You will hearfrom Mr. Courtney, a Unites States Department of Justice attaché to the U.S. Embassy in Manila,
how co-operation 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 wereincorporated into a recent law change regarding Germany’s so-called crown witness system.
One thing to bear in mind: while witnesses co-operating under promises of leniency are one of
the main categories of participants in witness protection programmes, a fundamental difference
between the two measures should not be overlooked. Leniency is offered in exchange for thewitness’s co-operation, but protection is not: it simply removes obstacles to full co-operation,and it should not be seen as a reward.

C. 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 thecompetent authorities any facts concerning offences established in accordance with theConvention (Article 33).”-3-

Whistle-blowers do not necessarily become witnesses, but they play an important role ofalerting the authorities to wrongful acts that would have otherwise remained unnoticed. For thatreason, the UNCAC requires States Parties to ”consider” incorporating appropriate measures toprotect reporting persons from unjustified treatment.

D. Japanese Laws and Practices
1. 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 is provided on a case-by-case basis and may be enhanced in accordance withthe risk involved.
2. Witness Assistance and Support
Various forms of witness assistance and support – measures designed to reduce psychologicalburdens and avoid secondary victimization of witnesses – are provided especially forvictim-witnesses, by both the police 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 tofacilitate the understanding of the process, the public prosecutors office has prepared a 54-pageeasy-to-read color booklet entitled FOR VICTIMS OF CRIME.4 Other assistance given by theprosecutors office includes accompanying witnesses to courthouses and introducing otherorganizations that can provide services, such as psychological and financial support, not within
the competency of the prosecutors offices
3. Procedural Protection
The Japanese Code of Criminal Procedure and court rules provide for a wide variety ofprocedural measures designed to ensure that witnesses testify free of intimidation and fear:(1) Limiting disclosure of a witness’s personal information;(2) Presence of accompanying persons for psychological support;(3) Shielding of witnesses;(4) Testimony via videoconferencing;(5) Removal of defendant from courtroom;
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-4-

(6) Removal of spectators from courtroom;(7) 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 thedefendant’s procedural rights – is essential. In Japanese law, such a balancing is reflected in
the measures available and the 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 suchinformation cannot be suppressed entirely, the Code allows for the possibility to delay or set
appropriate conditions on the disclosure in order to protect the witnesses.
(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 thewitness is likely to feel extreme anxiety or tension. Accompanying persons are usually a family
member, a psychological counsellor, or a police officer who has been providing assistance froman early stage in the investigation. The role of the accompanying person is to quietly sit by andprovide mental support, and they are prohibited from disturbing the examination of witnesses ortaking 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 thewitness’s identity. In practice, shielding is done by setting up a screen.
There are two types of shielding: shielding from the defendant and from the spectators. As theformer 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
rules of evidence that allow testimony to be given through video link or other communication-5-

technology. The courts in Japan, after hearing the opinions of the prosecutor and of the
defendant or his or her counsel, may place 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 theirpeace 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, upon hearing the opinion the prosecutor and the defence counsel, the court may
temporarily remove the defendant from the courtroom. In order to protect the rights of the
defendant, this procedure is available only when the defence counsel is present, and after thetestimony, the court is required to call the defendant back, inform him or her of the content of thetestimony, 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, the requirements and conditions are less strict than those that apply toremoval of defendants.
(7) Use of pretrial statements
Under the Japanese Code of Criminal Procedure, hearsay (pretrial statements of witnesses arehearsay) is generally inadmissible. However the Code recognizes several exceptions, andstatements taken by a public prosecutor and signed by the witness are admissible if one of thefollowing conditions are met:
(1) the witness is unavailable to testify at trial; or(2) 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 thehope of making them unavailable or influencing their testimony. 5

5Note that witness tampering usually justifies a finding that the pretrial statement is more trustworthy than
the trial testimony.

-6-(8) Some Statistics
The following table shows the number of witnesses for whom procedural protection measures
have been applied (source: Supreme Court of Japan). There has been a steady growth intheir usage since their introduction in 2000. They are not just potential measures on the statutebooks but are a real and utilized part of Japan’s current criminal practice.
2000

2001

2002

2003

2004

2005

2006

2007

2008

Total

10

38

68

51

87

68

77

70

86

555

Shielding

104

847

912

1,062

1,074

1,103

1,233

1,222

1,007

8,564

Testimony via
Video-link

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67

122

136

217

210

234

224

202

1,412

Accompanying
Persons

4. Witness Protection Programmes
Currently, there is no formally established covert programme that provides for relocation andchange of identity of witnesses.

5. Measures to Secure Co-operation from Witnesses
Persons who testify truthfully against their accomplices usually have already made truthfuladmissions of their wrongdoing and have accepted responsibility for it. Naturally, these
admissions will be reflected in the prosecutor’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 statuteor crown witness system, either. Despite some powerful arguments in favour of introducing suchmeasures, they have been controversial and have never materialized.

6. 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 anddisadvantageous 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 the act is not limited to wrongdoing within government but extends towhistle-blowing within the private sector.
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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 promotecompliance with law generally, and to contribute to the prevention and detection of various
forms of wrongdoing.

E. CONCLUSION
While the need to protect witnesses is universal, how best to achieve it differs from country tocountry. It has to be determined in accordance with each country’s legal tradition, society andculture, 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 good practices should be particularly useful. This
Seminar is intended as an opportunity to share experiences and exchange ideas, and I hope itwill contribute to developing a common understanding on this important subject of witness
protection.

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