Emerging Voices: The Joint Obligation to Protect Witnesses in the Fight against Transnational Organized Crime

[Laura Salvadego is a Postdoctoral Fellow at the Department of Law, University of Ferrara. This work has been developed during a research stay at the New York University School of Law – Center for Research in Crime and Justice, funded by Unicredit bank and by 5 per thousand contributions given to the University of Ferrara in 2010]

The need to ensure appropriate protection of witnesses plays a crucial role in the fight against transnational organized crime both at the universal level and in the European context. Rules concerning cooperation among states in this context suggest the existence of a joint obligation to protect witnesses that is functional to punishment of the authors, which in turn is perceived as a goal of the international society as a whole. Indeed, criminal networks of organized crime originate a threat to the entire international society (cf. Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, at 2), particularly because of their transnational ramifications. The global nature of threat requires that states’ efforts are integrated in a common and coordinated repressive project of multilateral nature (Kramer, at 4).

The idea that witnesses in criminal trials enjoy specific rights has gradually gained acceptance in international law (Fenwick, at 318), leading to the explicit acknowledgement of a positive obligation for states to adopt specific legislative and operative measures to assure witnesses’ self-determination and safety (Cf. Council of Europe, Rec. No. R (97) 13; Council of the European Union, Res. No. 95/C 327/04 and, among others, Ecthr, Artico v. Italy, para. 33 ff.).

It is actually possible to construe an overall, coherent “statute” for witnesses under international law, drawing from the various rules set by a number of different instruments dealing with the matter. Thus, for example, the 2000 United Nations Convention on transnational organized crime and its Protocols, set forth innovative rules concerning measures to be adopted by Parties to provide for protection and assistance of witnesses subject to reprisals and intimidation (Article 24).

The extent of the required protection and the resulting burdensome obligations for states are justified by the particular vulnerability of this category of persons, whose protection from the trial is functional to the fight against transnational organized crime. In fact, adequate repression of criminal offences would be widely thwarted if the high risk of negative consequences for witnesses’ health and safety could influence their deposition in the trial and, as a consequence, the outcome of the criminal proceedings. Witnesses’ fact-finding contribution is essential to contrast transnational criminal networks; however their fruitful participation is extremely difficult to obtain without appropriate mechanisms to neutralize dynamics of intimidation largely widespread in this context.

Imposing to adopt “appropriate measures within its means” for the purpose of granting witness’ protection, the Palermo Convention sets up a particular due diligence obligation (see Pisillo Mazzeschi, “Due diligence” e responsabilità internazionale degli Stati, 1989) that is not easy to appreciate. In fact, no specific and analytical indication is given concerning the so called “risk factors” significant to decide whether and to what extent the protection is necessary. Rules provided for by the international instruments on human rights have been clarified through the work of their respective control mechanisms (see, ex multis, ECtHR, Breukhoven v. The Czech Republic, para. 45; ECtHR, Štefančič v. Slovenia, para. 37; IACHR, Garcìa Prieto v. El Salvador, para. 14): their findings have helped defining appropriate protection standards in this context, also through systemic interpretation of treaty obligations (McLachlan, at 279 ff.).

This case law has helped developing a well-structured protective system that includes traditional procedural remedies, such as a set of special rules concerning proof formation. That’s the case, for example, for limitation of witness’ exposure to media, the use of video-link mechanisms, the employment of witness’ previous declarations as evidence in the trial (see Council of Europe, Rec. No. R (97) 13) and, in extreme cases, the guarantee of witness’ anonymity (Ecthr, Doorson v. The Netherlands, para. 70; cf., ex multis, Guerrin, at 45 ff.). Moreover witness’ guarantees have not to jeopardize opposite procedural exigencies outlined by human rights’ mechanisms of control, such as the interest to a public hearing and the right to a fair trial (ECtHR [GC], Al-Khawaja and Tahery v. The United Kingdom, para. 118). Thus, Article 24, para. 2, of the Palermo Convention establishes that protective measures have to be “without prejudice to the rights of the defendant, including the right to due process”. Therefore, witness protection exigencies always have to be put in balance with Defense’s rights in order to ensure respect for the principle of fair trial, as set forth by the International Covenant on Civil and Political Rights (Article 14) and other relevant instruments.

However, procedural protective measures need to be complemented by non-procedural remedies, such as the provision of specific long or medium term protection programmes (cf. UN Office on Drugs and Crime, at 5(c); Montanino, at 392 ff.; Council of Europe, Rec. (2005) 9, sec. I).

Furthermore, there is a requirement of appropriate cooperation among states so as to ensure the effective implementation of both procedural and non-procedural protective measures. In transnational organized crime trials, cooperation among states is not a mere contingency, but rather a distinctive feature, since the existence of links between the case and a state other than the one in which the trial is held is inherent in the very definition of transnational crime (see Palermo Convention, Article 3). After all, the recourse to international cooperation among states regarding transnational organized crime assumes the protection of interests that overstep state’s boundaries (Quadri, Diritto penale internazionale, in Trattato di diritto internazionale, XI (Fedozzi, Romano eds., 1944), at 4).

Once the state to which the request is addressed agrees to grant judicial assistance, both the requesting state and the requested state have the obligation erga omnes partes (see ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Second Phase) (Merits), para. 33; Ragazzi, The Concept of International Obligations erga omnes, 1997; Picone, Comunità internazionale e obblighi “erga omnes”. Studi critici di diritto internazionale, 2006) to afford the protection. Thus, for example, Article 18 of the 2000 UN Convention sets forth a particular due diligence obligation for states resorting to mutual legal assistance mechanism both under the Convention and in the context of an ad hoc bilateral or multilateral agreement. Primary protection has to be granted by the state where the trial is conducted nevertheless a subsidiary responsibility is incumbent on the requested state: that’s the case, for example, for the exam of witnesses who are relocated abroad in a protected location by the means of international letters of request. A similar fragmented obligation comes into play also as regards non-procedural protective measures that have to be performed across geo-political boundaries of the state affording primary protection.

A fortiori the same conclusion applies to forms of cooperation among states negotiated in specific bilateral or multilateral agreements, even in the context of regional organizations (see the Palermo Convention, Article 36). In this perspective, for example, Council of the European Union, Res. No. 95/C 327/04 provides for an obligation for member states “to facilitate judicial assistance in this field, even in the absence of any such provisions in the legislation of the state to which the request is addressed, save where compliance with the request for assistance would be contrary to the general principles of the state’s law” (ivi, (b)). In general, cooperation among states has “to allow witness protection programmes to be implemented across borders” (Council of Europe, Rec. No. R (97) 13, para. 30), for example by means of measures aimed at granting adequate “assistance in relocating protected witnesses abroad and ensuring their protection [and] exchange of information between authorities responsible for witness protection programmes” (ibidem).

When a state implements judicial assistance mechanisms, its obligation to guarantee adequate protection of witnesses is extended across the state’s boundary lines, with a resulting surveillance obligation on the activity of the state requested of the assistance. This aspect should be considered by the requesting state when deciding to have recourse to judicial assistance both when a protected witness has to be heard abroad in a state that is not Party to the Palermo Convention and whose legislation provides for lower guarantees for witnesses, and when the requested state, albeit Party to the Convention, does not offer adequate guarantees of equivalent protection.