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V. Witness Protection and Support

Witness protection and support before, during and after war crimes proceedings is crucial to ensuring the safety and well-being of witnesses and promoting effective trials.  At the State Court level, the Witness Protection Support Unit and the Witness Support Office handle witness protection and support, respectively, for both the War Crimes and Organized Crime Chambers.  As outlined below, both the Witness Protection Support Unit and the Witness Support Office have far-reaching and impressive plans aimed at promoting the safety and well-being of witnesses in trials before the WCC.

A. Role of the Witness Protection Support Unit before and during trial

Given its location in the country where the crimes occurred and the particular challenges associated with concealing a witness’s identity in a small country, the importance of ensuring effective protection is heightened in relation to the WCC.  Under Bosnian law, the Witness Protection Department in the Bosnian State Investigation and Protection Agency (SIPA) is the body responsible for all witness protection matters.¹⁴⁵  At present however, SIPA’s ability to provide the necessary resources to support the Witness Protection Department is limited.  SIPA therefore entered into a Memorandum of Understanding (MOU) with the Registry of the State Court for the coordination of activities regarding witness protection on March 1, 2005.¹⁴⁶The MOU includes reference to the development of a joint strategy with respect to witness protection, training projects and methodology.¹⁴⁷

Pursuant to the MOU, the Witness Protection Support Unit was established within the Registry to provide technical and material assistance to the SIPA Witness Protection Department.¹⁴⁸  The Registry has also provided a secure office location, equipment, staff and training, as well as the assistance of an international Witness Protection Advisor.  Notwithstanding the Registry’s support, the core responsibility for witness protection remains with SIPA.¹⁴⁹  The assistance provided by the Registry is therefore consistent with the overall transition strategy of building local capacity within existing institutions to promote sustainability. 

There are various measures aimed at ensuring the protection of witnesses before and during the proceedings.  For example, the State Court has been designed to promote the safety and well-being of witnesses who provide testimony.  Defense and prosecution witnesses have separate entrances to the court to minimize the possibility of contact before proceedings.  Separate waiting areas have also been designated for defense and prosecution witnesses for use prior to providing testimony in proceedings.¹⁵⁰ 

In addition, there are a number of protective measures available to a witness under Bosnian law.  During the investigative phase, the prosecutor can invoke protective measures for a witness.¹⁵¹  Under certain circumstances during court proceedings, testimony can be provided from behind a screen and/or technical means for voice distortion may be used to prevent the disclosure of a witness’s identity to the public.¹⁵²  To that end, each courtroom has the necessary equipment to implement these means when required.¹⁵³ In all cases, measures of protection can only be instituted with the consent of the witness.¹⁵⁴  The Witness Protection Support Unit works closely with a witness throughout the process to ensure appropriate protection measures are in place.¹⁵⁵

Where there is an imminent and manifest risk to the security of a witness that is unlikely to be mitigated after the testimony is given, or will be aggravated by the giving of testimony, the court can conduct a protection hearing on its own initiative or upon a motion of the prosecutor, defendant, or defense counsel.¹⁵⁶ A protected witness provides testimony at the protection hearing, the record of which is later read out at the main trial.¹⁵⁷  During the protection hearing, the identity of the protected witness is only revealed to the members of the court and the minute taker of the hearing, and a pseudonym is assigned to the witness for the purpose of the trial record.¹⁵⁸ The defense is not provided with the witness’s identity.  The defendant, however, cannot be convicted solely or to a decisive extent on the testimony provided by a protected witness.¹⁵⁹

Human Rights Watch supports the use of closed sessions and other confidentiality measures to conceal the identity of a witness from the public and the media, and to protect witnesses from re-traumatization, provided such measures are consistent with the rights of the accused and a fair and impartial trial.  However, we oppose the use of evidence from a witness whose identity as known to a defendant is concealed from that defendant in criminal proceedings.  The use of such evidence violates international standards for a fair trial.  

Article 14 of the International Covenant on Civil and Political Rights (ICCPR) states a defendant’s right to “adequate time and facilities for the preparation of his or her defense.”¹⁶⁰  The ICCPR also states the right of a defendant to “examine, or have examined, the witnesses against him.”¹⁶¹  The defendant must therefore be afforded a reasonable opportunity to examine witnesses in putting forward his or her defense.  Where the identity of the witness testifying against the defendant is not disclosed, it is not possible to conduct an effective cross-examination to either discredit the witness or refute his or her testimony.  This could in turn undermine the defendant’s ability to prepare an adequate defense, and thus place him or her at a significant disadvantage as compared to the prosecution.  The Bosnian authorities should amend the law to eliminate the possibility of concealing a witness’s identity from the defendant in all criminal proceedings.

B. Role of the Witness Support Office before and during trial

Effective support for witnesses who have experienced severe trauma in war crimes cases promotes their dignity and psychological well-being before, during and after testimony has been provided.  Within the State Court, the Witness Support Office provides essential psychological support to prosecution and defense witnesses in both organized crime and war crimes cases.  However, while there have been 190 witnesses in organized crimes cases in the period of May to October 2005, only 10 percent of witnesses in those cases have required psychological assistance.  By contrast, it is anticipated that all witnesses in war crimes trials may require psychological support.¹⁶²  This underscores the pivotal role of the Witness Support Office in minimizing the negative effects of providing testimony in proceedings before the WCC.

In most cases, the involvement of the Witness Support Office commences after an indictment has been made public.  Staff members in the Witness Support Office review the list of witnesses in order to identify potentially vulnerable individuals and obtain background information from the prosecution or defense.  Staff members then contact these witnesses by telephone or arrange a meeting when necessary.¹⁶³  During this initial contact, an explanation is provided about the function of the Witness Support Office. An assessment is also made about the social and psychological needs of the witness, including an evaluation of the witness’s health, family and financial situation.  Where appropriate, an explanation may also be provided about the physical and psychological impact of providing testimony, including the possibility of re-traumatization.¹⁶⁴  To demystify the process, a staff member from the Witness Support Office explains the court process, informs the witness about the right to request a break during proceedings and, in some cases, shows him or her the courtroom in advance of the proceedings.¹⁶⁵  After this initial contact, the witness is provided with a twenty-four-hour telephone number to reach the Witness Support Office in the event that there are additional questions or concerns about giving testimony.¹⁶⁶

During proceedings, the Witness Support Office aims to be an advocate of the witness. To that end, a staff member is present in the courtroom during proceedings and conveys information about the witness’s stress level to the prosecutor and the judge(s).¹⁶⁷  The Witness Support Office also responds to requests from prosecutors and defense counsel with concerns about the possible negative effects on a witness after he or she has testified.  Further, the Witness Support Office provides general information to judges in the State Court to maximize their sensitivity about issues related to victims.¹⁶⁸ 

In addition to psychological support, the Witness Support Office provides, on its own initiative, a measure of financial assistance for witnesses with special needs to facilitate the experience of providing testimony.  For example, a witness in financial need who is responsible for the care of a child or an elderly family member may be entitled to a child care or dependents allowance, respectively.  Similarly, a vulnerable witness may receive support for an accompanying person to be present during proceedings, in addition to the Witness Support Office staff member.¹⁶⁹  Despite budgetary constraints, the Witness Support Office informed Human Rights Watch that it has thus far managed to provide the allowance to all of the most vulnerable witnesses.¹⁷⁰  Human Rights Watch encourages the ongoing support of the Registry to the Witness Support Office in providing these allowances when necessary, particularly as the number of trials, and consequently the number of vulnerable witnesses before the WCC, increases. 

C. Protection and support post-trial

Human Rights Watch was informed that protective measures have been set up for after the completion of proceedings.  After trial, the Witness Protection Support Unit conducts an updated threat assessment to determine what measures should be applied.¹⁷¹  In exceptional circumstances, one of the measures available for a witness and his or her family is relocation outside Bosnia.  To that end, the Witness Protection Support Unit has entered into several agreements with other states to facilitate the logistics for such relocation for witnesses involved in proceedings before the State Court, including the WCC.¹⁷² 

The Witness Support Office also has a role in the post-testimony phase.  Within fifteen days of providing testimony, a staff member in the Witness Support Office contacts the witness to assess his or her mental health.  The witness can also contact the Witness Support Office anytime after providing testimony using the twenty-four-hour contact number mentioned above.  In addition, the Witness Support Office has established contacts with a number of mental health professionals throughout Bosnia who are familiar with the strict confidentiality required in sensitive war crimes cases.  In the event a witness requires additional therapy, the Witness Support Office provides this contact information to the witness for further assistance.¹⁷³