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United Nations Development Programme

Support to and of criminal offences in the Republic of Croatia

An analysis of survey results, international documents, foreign and national regulations with recommendations for amendments to the legislative framework and the methods of organizing and implementing the provision of support and the protection of victims’ and witnesses’ rights in practice


United Nations Development Programme (UNDP) is the UN’s global development network, advocating for change and connecting countries to knowledge, experience and resources to help people build a better life. We are on the ground in 166 countries, working with them on their own solutions to global and national development challenges. As they develop local capacity, they draw on the people of UNDP and our wide range of partners. Short extracts from this publication may be reproduced unaltered without the author’s consent, on condition that the source is indicated. The views expressed in this paper are those of the authors and do not necessarily represent the official views of UNDP. Copyright © 2007. By the United Nations Development Programme (UNDP) Radnička cesta 41/8, 10000 Zagreb, Croatia www.undp.hr

Project manager: Mario Krešić Authors (in alphabetical order): Dean Ajduković, Marin Mrčela, Ksenija Turković Special adviser to the Project: Thomas Osorio, Head of the Zagreb Liaison Office, ICTY Translation into English: Jasenka Težak Stefanić Proofreading: Branimir Berković Editor: Tara Bray Cover and design: Krešimir Kraljević


CONTENTS


Contents

CONTENTS 7

1. Introduction

15

2. Survey Summary

19

Recommendations

23

3. Institutional Framework of Witness Support in the Republic of Croatia 3.1. The penal system in the Republic of Croati

29 29

3.1.1. Fundamental principles and miscellaneous

29

3.1.2. Sources of law

31

3.1.3. Courts in the Republic of Croatia

31

3.1.4. Judicial administration

32

3.2. Protection and witness support in the penal system of the Republic of Croatia

33

3.2.1. The witness support system’s legal and institutional framework

33

3.2.2. Witness support system in relation to their needs

36

3.2.3. Example of organising witness support in court

36

3.2.4. Judicial administration, organization and judicial practice of witness support

37

4. Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses 4.1. Support to victims/witnesses and support services

41

44

4.1.1. Support for victims/witnesses and support services in international documents

44

4.1.2. Support to victims/witnesses and support services at the International Criminal Court

45

4.1.3. Support and services providing support to victims/witnesses - comparatively

46

4.1.4. Support and services providing support to victims/witnesses in the Republic of Croatia

46

4.1.5. Survey results

47

4.1.6. Recommendations

49

4.2. The right of victims/witnesses to information

50

4.2.1. The right to information in international documents

50

4.2.2. The victims’ right to information before the International Criminal Court (ICC)

50

4.2.3. Comparative experiences

51

4.2.4. The victims’ right to information on criminal proceedings in the Republic of Croatia

52


Contents

4.2.5. Survey results regarding the right to information

53

4.2.6. Recommendations

56

4.3. The right of victims/witnesses to be treated with respect and dignity

8

58

4.3.1. The guarantee of a victim’s/witness’s right to respect and dignity in international documents

58

4.3.2. Protection of the dignity of victims/witnesses at international criminal courts

59

4.3.3. Comparative analysis

59

4.3.4. Protection of the dignity of victims/witnesses in the legislation of the Republic of Croatia

60

4.3.5. Survey results

63

4.3.6. Recommendations

68

4.4. The right of victims/witnesses to protection

70

4.4.1. Guaranteeing the right of victims/witnesses to physical and psychological integrity in international documents

70

4.4.2. Protection of victims/witnesses at international criminal courts

72

4.4.3. Comparative analysis

73

4.4.4. Protection of victims/witnesses in the Republic of Croatia

75

4.4.5. Survey results

81

4.4.6. Recommendations

82

4.5. Privacy protection of victims/witnesses

84

4.5.1. Privacy protection of victims/witnesses in international documents

84

4.5.2. Privacy protection of victims/witnesses at international criminal courts

84

4.5.3. Comparative experiences

85

4.5.4. Privacy protection of victims/witnesses in Croatian legislation

86

4.5.5. Survey results

87

4.5.6. Recommendations

87

4.6. Concluding remarks

5. Witness support – experiences and opinions of judges handling criminal cases at county courts

88

91

5.1. Opinions, experiences and needs of judges in applying legal support measures for witnesses

92

5.2. Needs of judges for additional information and training in the field of witness support

96

5.3. Judges’ opinions and experiences regarding the witnesses’ psychological feeling of being threatened

98

5.4. Opinions, needs and experiences of judges about organisations and witness support services

100

5.5. Conclusion

102


Contents

6. Experiences of war crimes victims – survey results

107

6.1. Witnesses’ feeling of being physically threatened

107

6.2. Witnesses’ feeling of being psychologically threatened

108

6.3. Aspects which make testifying for witnesses more difficult

109

6.4. Experience and significance of testifying for witnesses

111

6.5. Opinions about the importance of psychological witness support and proposals

112

6.6. Conclusions and recommendations

113

7. Appendices 7.1 Goals and methodology of the survey upon which the analysis is based 7.1.1. Survey of experiences of victims/witnesses in violent criminal offences and their proposals for improving support to victims/witnesses of criminal offences

117 117 117

7.1.1.1. Survey goals

117

7.1.1.2. Data gathering procedures and instruments

118

7.1.1.3. Survey participants - witnesses

118

7.1.2. Experiences and opinions of county court judges handling criminal cases about victim/witness support

119

7.1.2.1. Survey goal and data gathering procedure

119

7.1.2.2. Survey participants – county court judges

120

7.1.3. Survey of experiences of witnesses of war crimes procedures

122

7.1.3.1. Survey goal and data gathering procedure

122

7.1.3.2. Survey participants

123

7.2. List of international and regional documents

123

7.3. List of verdicts of the European Court of Human Rights

126

7.4. List of verdicts of the ICTY and ICTR

127

7.5. List of RC regulations

127

7.6. References

128

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10


Credits

Credits 11 We would like to thank all witnesses and judges who answered questionnaires, the Ministry of Justice of the Republic of Croatia, the Supreme Court of the Republic of Croatia and the presidents of county courts who supported this survey, as well as the members of the organisational team who conducted the actual survey: Antonija Matas, Ana Jergović, Vanja Babić, Josipa Kovačević, Melita Carević, Marijana Dević, Danijela Stepić, Davor Jandrić, Vanja Petrović, Lejla Novljaković, Veronika Torbarina, Kristina Sertić, Marija Pleić, Ana Jasprici, Petra Dujmović, Anita Jelaš, Ana Nemet, Igor Njegovanović, Igor Majcen, Kristina Božić, Jelena Kenđel, Lea Ivuša, Marina Jurkin, Ivana Božac, Slavicai Đokić, Ana-Marija Murić, Sanja Smontari, Vedran Medaković, Petar Malivuk Jovanović, Sanja Matušan, Ružica Mihelj, Sandra Penić, Sanja Macura and Marko Turudić. We extend our special gratitude to the authors of this survey and analysis -Dean Ajduković Ph.D., Professor, Marin Mrčela M.Sc. and Ksenija Turković Ph.D., Professor; and to the nongovernmental organization DOCUMENTA for organizing and conducting interviews with war crimes witnesses and victims; as well as to OSCE Mission to Croatia and ICTY Zagreb Liaison Office for their support and advice.


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1

INTRODUCTION


Introduction

1

1. Introduction 15 In the first months of 2007 the United Nations Development Programme in the Republic of Croatia conducted a survey and analysis of the conditions in which victims and witnesses participate and are supported in criminal proceedings in the Republic of Croatia, within the Regional Transitional Justice Programme. An effective support system for victims and witness of criminal offences represents not only an essential element for the efficient processing of cases, but also for the complete fulfilment of the rights of victims and witnesses, to which they are entitled regardless of the needs of the penal system. The new approach to victims and witnesses was initiated in 1985 with the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The standards of protection for victims of criminal offences established by the Declaration serve as guidelines for the creation of victim protection systems in international criminal courts and for the reforms of national penal systems. Reform efforts have resulted in a change of perception in relation to victims and witnesses, who are no longer considered to be simply a means of establishing facts, but as active and critical participants whose fundamental rights need to be respected. At the same time, citizens’ increasing demand for an efficient justice system has obliged national governments to find answers to the challenge of securing evidence in a timely manner, which in the most serious criminal cases frequently depends on the response of victims and witnesses. Every consistent reform of the judiciary must also encompass the development of the witness support system within the penal system. The efficient prosecution of criminal offences is part of the concept of transitional justice in which societies aim to avoid a situation where crimes go unpunished and where the human rights violations legacy is forgotten. To achieve the complete integrity of criminal proceedings it is necessary to secure an integral support system which meets the needs of victims and witnesses and protects their fundamental rights. As a candidate for membership in the European Union, and in line with the activities aimed at achieving the efficient criminal prosecution of all perpetrators of war crimes, the Republic of Croatia is undertaking measures to improve the protection of the rights of victims and the status of victims and witnesses in criminal proceedings. With a view to supporting the reform of the Croatian judiciary, UNDP conducted a survey and analysis of the victim and witness support system in the Republic of Croatia. In view of the very limited research in the area, this survey of experiences, needs and opinions of witnesses and judges, represents a significant source of findings for future policies of developing witness support systems. The target group of the survey were witnesses who, during the course of a one-month survey, testified at nine county courts, as well as all county court judges handling criminal cases. The experiences, needs and opinions of the especially vulnerable group of witnesses – witnesses of war crimes were researched by means of in-depth interviews. The results of the survey show that: -

Both judges and witnesses agree that the system of witness support should be improved.

-

Witnesses need more direct institutional support during trials and judges confirm that such support should be coordinated in an institutional way (eg. special offices located within courts).

-

Witnesses need more information on their rights and available support services, and judges require more information and trainings on how to provide such services.

-

Courts should be adequately equipped to meet the needs of witnesses.

Given the complexity and sensitivity of the survey as the first one of its kind in the Republic of Croatia, the success of this project depended on the efforts of all those contributing to its completion.

Yuri Afanasiev


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Introduction


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SURVEY SUMMARY


Survey Summary

2

2. Survey Summary 19

The protection of the rights of witnesses and victims in the Republic of Croatia is an area that has to date not been systematically analysed. In view of this, at the beginning of 2007 the United Nations Development Programme Office in the Republic of Croatia began a project, within the Regional Transitional Justice Programme, which carried out a survey and analysis of the victim and witness support in criminal proceedings in the Republic of Croatia,. The main goal of the research was to provide a comparative analysis of the existing victims/witnesses support system at courts in criminal offence cases with elements of violence (murder, attempted murder, rape, robbery) and war crimes and the needs of victims/witnesses. The central part of the analysis is the interpretation of three interconnected surveys: 1) surveys of the experiences of victims/witnesses in procedures involving violent criminal offences, and their suggestions for improving the support for victims/witnesses; 2) surveys of witnesses’ experiences in war crimes proceedings; and 3) surveys of the experiences and opinions of county court judges handling criminal cases regarding support to victims/witnesses of criminal offences.

The survey encompassed 130 witnesses and victims at nine county courts, 14 witnesses who gave testimony in criminal offences for war crimes and 110 county court judges handling criminal cases. Witnesses and victims of criminal offences were interviewed by qualified poll-talkers. Interviews with war crimes witnesses were conducted by psychologists experienced in interviewing people who have suffered a trauma or a loss. Information was gathered from county court judges by means of polls through the mail. The authors of the analysis are Dean Ajduković Ph.D., Professor, Marin Mrčela M.Sc. and Ksenija Turković Ph.D., Professor. In regard to the provision of support to victims and witnesses and the protection of their rights, the survey conducted among witnesses and judges presented the following results:

Victims’ rights -

Victims/witnesses emphasized the following as the most important rights of victims: the right to information, the right to free legal aid, the right to psychological and emotional support, the right to the protection of personal safety, the right to the protection of privacy and the right to compensation for damages; similarly, judges consider that the most important legal options which the victims do not enjoy at this moment within the criminal procedures of the RoC are psychological and emotional help, free legal aid and compensation for damages from the state -

-

between victims/witnesses and the judges, there is a strong similarity of opinion when prioritising certain rights of victims; this similarity is also found with the less important rights of victims, with the right of veto, the right to propose the type and degree of sanction and the right to file an appeal being listed as less significant rights of victims;

Only 10.9% of witnesses-respondents consider that the penal system in the RoC fully meets the needs of victims, and 11.7% consider that it fully meets the needs of witnesses.


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Survey Summary

Service for providing support to victims/witnesses -

94.6% of witnesses-respondents were not provided with contact information for one of the organisations/ services that could have provided them with practical and/or psychological help. 69% of respondents who did not have contact with a service or organisation for providing psychological or practical support to victims and/or witnesses in criminal proceedings believe this would have been useful;

-

81.8% of judges noticed the witness’s psychological feeling of being threatened, and 68.2% of judges stated that they have no information on organisations and professionals in the area falling within their court’s jurisdiction to whom they can refer to for help regarding the provision of witness support, including psychological and emotional support;

-

77.5% of witnesses-respondents consider that contact with an organisation for providing help to victims/ witnesses would be useful, and only 2.7% of the judges think there is no need to provide support to victims/ witnesses;

-

The largest need for services provided by the services/organisations providing support to victims/witnesses, arises immediately upon the perpetration of the crime (86.9% of the witnesses-respondents), and witnesses would like such a service to provide psychological and emotional support (68.2%), legal advice (71.3%) and information on the rights of witnesses and the services at their disposal (49.6%);

-

68.2% of judges consider that a special service should exist in court to provide support to victims/witnesses; 37.7% of the witnesses-respondents believe that support to victims/witnesses during trial would be useful.

20

The right to information -

69% of victims/witnesses received no information regarding the proceedings; none of the victims/witnesses of war crimes received information about the proceedings and their rights, witnesses usually received information related solely to the time they had to appear in court (and this only in 78.5% of the cases); only 17.7% of the witnesses received information on the right to reimbursement of their expenses; the witnesses’ main criticism of judges is that they provide no prior information to witnesses as to what will be happening in the courtroom, who will be present in the courtroom and what the rights of victims/witnesses are; the majority of witnesses felt uncomfortable due to the unfamiliarity of the situation – 26.9% of respondents felt uncomfortable because although they had previously acted as witnesses they still did not understand the legal process, i.e. 17.7% of the witnesses felt uncomfortable because they did not understand their role in the criminal proceedings. Only 16.2% of witnesses received information on their role in court.

-

Both victims/witnesses and judges consider that the most important information that needs to be provided is on how and under what conditions victims/witnesses may obtain protection if feeling threatened, information on the type and form of the service to refer to for help, and on important events in the proceedings; witnesses also consider that receiving information on when the perpetrator goes to jail is very important;

-

36.7% of witnesses would like to tour the courtroom prior to testifying.

Secondary victimization „ I had a bad experience, because I had the feeling that I am on trial“ *war crime witness statement -

Some 60% of witnesses-respondents felt uncomfortable during the proceedings (mostly during testimony) and mainly due to the encounter with the defendant; this was particularly disturbing for victims/witnesses of war crimes; 94.6% of the witnesses waited to give their testimony in the hallway;

-

64.3% of witnesses needed support in the courtroom during testimony; again, this need was particularly emphasised with victims/witnesses of war crimes;


Survey Summary

-

The percentage of satisfaction with judges’ actions was significant, (97.7 % of respondents), but only 62.8% thought the judge was interested, 56.6% that the judge respected their opinion, 65.1% that the judge gave them the chance to say all that they wanted and 49.6% that they were treated with respect;

-

A large number of judges rarely or never use the various possibilities at their disposal that would reduce secondary victimization and decrease the anxiety of victims/witnesses, ie the temporary removal of the defendant from the courtroom (a measure not used by 98.2% of judges), exclusion of the public from the main hearing (a measure not used by 80.1% of judges), questioning with the aid of technical devices (a measure not used by 92.7% of judges), special means of questioning and witness’ participation in the proceedings (a measure not used by 98.1% of judges);

The need for on-going professional training -

85.4% of judges consider that they do not have sufficient knowledge on the methods of reducing the witnesses’ feelings of psychological threat; 68.2% of judges consider that they do not have enough information on the organisations to which victims/witnesses can turn to for psychological and other support;

-

76.7% of judges consider it necessary to provide more professional information on the application of support measures to victims/witnesses, whilst 91.3% of judges consider that there are not enough professional training programmes on the application of support measures for victims/witnesses.

Safety protection of victims/witnesses „Whether justified or not, fear is always present“ *war crime witness statement

-

27.9% of witnesses-respondents stated that they had needed protection in relation to their giving testimony, but that it had not been offered to them;

-

Judges frequently order imprisonment due to collusion (60.8% of them). However, there is a statistically significant difference between investigating and hearing judges - in favour of investigating judges - in the use of detention as a witnesses protection measure, which indicates that detention is used to secure evidence and not to protect a victim/witness;

-

Other measures for the protection of victims/witness at the disposal of judges are rarely or never used by them;

-

Amongst the protection mechanisms judges have at their disposal, detention is considered to be the most useful one, followed by questioning the witness by technical devices for the transfer of images and sound, special means of witness participation and questioning in proceedings, and measures for maintaining order in the courtroom.

Privacy protection of victims/witnesses -

18.5% of witnesses declared they felt the need for privacy protection (from photography, the media, by exclusion of the public from the main hearing, etc.), and 13.1% felt the need for a special means of testifying in order to protect their identity;

-

As regards privacy protection measures for victims/witnesses, judges frequently order the exclusion of the public from the main hearing; other measures which may serve for privacy protection are hardly ever used.

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2

Survey Summary

Compensation for damages to the victim -

Only 11.7% of witnesses believe the state should never compensate the victim ever.

22

Satisfaction of witnesses with their stay at court „I am sorry for testifying at all, you know, a person likes to testify if he knows that something is going to happen, that justice is going to win, but in this case, I doubt the outcome“ *war crime witness statement -

65.1% of witnesses were satisfied with the conditions of their stay at court;

-

For 66.7% of witnesses the time of testimony was either partially or entirely unsuitable; 22.7% of witnesses waited to testify for over an hour, but only 1.6% waited longer than 4 hours; 94.6% of witnesses waited in the hallway to testify;

-

For 46.1% of witnesses the testimony was a complete or a partial waste of time;

-

Only 20.8% of witnesses would be happy to testify again.

Survey results indicate that: -

certain deficiencies in the legislative framework exist as regards the protection of rights of victims/witnesses (provision of free legal aid, compensation of damages by the state, lack of mechanisms to reduce secondary victimisation, certain deficiencies exist in regulating the protection of witnesses’ safety and privacy, etc.);

-

there is a lack of an appropriate system for providing support to victims/witnesses, even though there is a large demand for such a system, both on the part of witnesses and on the part of judges who themselves often take note of the needs of victims/witnesses but simply do not have the time to deal with such issues or lack the knowledge on how to provide victims/witnesses with help;

-

courts are not adequately equipped, this being of less importance for witnesses than obtaining information on their rights and the course of the criminal proceedings, the provision of psychological and emotional support and ensuring free legal aid;

-

there is a large demand for the systematic training of all persons who come into contact with victims/witnesses, on the rights of victims/witnesses and the manner in which they are treated, as well as on the methods of providing support, especially psychological and emotional.


Survey Summary

2

Recommendations 23 The analysis of the survey results, international and regional documents and the good practice of international criminal courts and individual European legal systems, indicates that action is necessary on several levels:

1. Research level On this level it is necessary to:

a. Conduct various types of surveys -

Periodic surveys on the needs of victims/witnesses and their satisfaction with the services provided – the questionnaires prepared within the framework of this research should be improved and the research monitoring the needs of victims/witnesses should be carried out over wider samples

-

Identification of the existing state or private services/organisations and NGOs that provide or could provide support to victims – examine their positive aspects and deficiencies in order to help them in improving their work

-

Examine the possibility of organising an efficient and effective victim/witness support system on the basis of a feasibility study – determine what type of victims/witnesses support organisation would be the most suitable given the existing circumstances, taking into consideration the financial capabilities and services in place

-

Periodic surveys of the victimisation rates, especially with a view to reducing re-victimisation – research data obtained through the ICVS (International Crime Victim Survey) is a suitable method, according to other countries’ experience. These surveys should be carried out within the Central Bureau of Statistics of the RoC;

b. Analyse survey results and discuss them in public and among interested groups (stakeholders); organise workshops on survey results; c. Publish the results and analysis of all surveys; d. In addition to a detailed analysis of international and regional documents relating to the protection of victims’ rights and providing support for victims and witnesses, analyse the good practices of international criminal courts and the courts of other countries;

2.

Level of development of policies for providing support to victims/ witnesses and protecting their rights

On the basis of the surveys conducted, there is a need to prepare policies which provide support to victims/witnesses and which protect their rights. Within the preparation process it is important to:

a. determine the chief policymaking body responsible for preparing the policy of providing help to victims/ witnesses which is also responsible for supervising the implementation of such policy – comparative experiences indicate that the best way to achieve this is to set up a special victims and witnesses support unit at the national level; b. adopt a strategy and action plan for protecting the rights of victims and providing support to victims and witnesses.


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Survey Summary

3. Legislative level With a view to improving the legislative framework it is necessary to:

24

a. set up a working group comprised of different professionals (academics and practitioners) dealing with issues of protecting the rights of and providing support to victims/witnesses, in order to analyse legislative deficiencies and prepare proposals for supplements and amendments to the relevant legislation b. consider the necessity of adopting a special charter on the rights of criminal offence victims (a ‘Victim’s Bill of Rights’); c. develop the legislative framework to introduce a programme of victims compensation by the state; d. re-analyse the existing forms of security against different types of victimisation and prepare proposals for improving insurance policies and the possibility of their expansion; e. develop the legislative framework of the restitution programme; f. develop new or adapt the existing protocols on victims/witnesses participation in criminal proceedings, on the provision of support to victims/witnesses in criminal proceedings, on the cooperation of different services and organisations that provide support to victims/witnesses as well as victims/witnesses treatment guides, on the metholodies used for questioning victims/witnesses, etc.

4. Level of creating a victims/witnesses support system A system for providing help to criminal offence victims/witnesses must be established. Since there is no significant initiative in the civil sector providing support to victims/witnesses in Croatia at the moment, it is our opinion that the initiative for creating such services and organisations should come from the state, primarily from the Ministry of the Interior and the Ministry of Justice, taking into consideration the competencies of the nongovernmental sector. Therefore, the working group gives following recommendations:

a. The provision of help to victims/witnesses should, in the organisational sense, operate on three levels: -

the national level (Unit for Providing Support to Victims and Witnesses as an interdepartmental body) - strategic level,

-

regional – coordination level and

-

local – operational level;

b. The needs of victims and/or witnesses are diverse, which is why the services must be diverse and at the disposal of victims/witnesses immediately upon the occurrence of the event, which is when they are most wanted. This is why the services for providing help to victims/witnesses must cooperate with a whole range of organisations and services, the operation of which is focused on this issue, as well as with penal authorities; c. Special services need to be established or individuals appointed at courts to provide help to victims/witnesses during the trial itself, or entrust NGOs with this, in which case courts should appoint individuals who will have a coordination role with NGOs: d. It is crucial to work on a network of organisations which provide psychological help to victims/witnesses; e. It is necessary to promote the development of specialised organisations/services in order to help certain categories of victims (children or victims of certain criminal offences like rape, domestic violence, organised crime etc.); f. Once the system of providing support to victims/witnesses has been designed, a pilot project must be conducted at one or more courts.


Survey Summary

2

5. Training organization level It is important to improve the training of the police, state attorneys, attorneys and judges, people who will work in the services/organisations providing support to victims/witnesses, and volunteers and others who are in contact with victims on a daily basis (medical staff, social workers, different NGO members etc.). As regards the victims’/ witnesses’ need for support and the possibilities currently available to them in this respect: a. It is necessary to identify the organisations which would carry out the training (the Judicial Academy, law schools, Social work study centre, Faculty of Philosophy - Psychology department, NGOs etc.); b. It is necessary to develop special training programmes and appropriate materials – this should include foreign experts ; c. It is necessary to organise study visits to legal systems with a developed system of support to victims/ witnesses.

6. The level of promotion of the rights of victims and support for criminal offence victims and witnesses At this level it is important to: a) Raise the awareness of the public and within the services in contact with crime victims regarding the needs of criminal offence victims by way of public debates, round tables and promoting solidarity amongst victims; to familiarize the public with the rights of victims; b) Familiarize the public with the existing organisations and forms of help for victims; c) Work on developing victimisation prevention programmes, to provide victims with advice on how to avoid re-victimisation, to alert them to the factors contributing to victimisation; d) Issue brochures providing information on how the penal system functions, on the rights of victims and on the existing forms of help for victims and the organisations providing such help, on victimisation factors and the ways to prevent them ; e) Set up victims/witnesses phone lines which would provide the following information: information on the rights of victims/witnesses, on the course of criminal proceedings, on their role in criminal proceedings, etc.

7.

Cooperation level

It is necessary to give importance to the establishment of cooperation and exchange of experience in the region and at the level of the Council of Europe and the European Union. UNDP believes that the research results will serve as a starting point for significant changes in the treatment of witnesses/victims in the Republic of Croatia, as justice for the victim is accomplished not only by punishing the perpetrator, but also by helping the victim and rectifying the situation in which the victim has found herself/himself because of the criminal offence. Victims must be treated as participants in the proceedings respecting their intrinsic rights, and not just as mere instruments in the hands of justice. The right to protection, privacy and dignity must be secured for victims and other witnesses without discrimination, because this constitutes their natural rights, and not exclusively to the point necessary to ensure their testimony in a case.

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Survey Summary


3

INSTITUTIONAL FRAMEWORK OF WITNESS SUPPORT IN THE REPUBLIC OF CROATIA


Institutional Framework of Witness Support in the Republic of Croatia

3. Institutional Framework of Witness Support in the Republic of Croatia 3.1. The penal system in the Republic of Croatia The historical origin of the penal system in the Republic of Croatia stems from Austro-Hungarian and German law. During the Austro-Hungarian period criminal proceedings in Croatia became a mixture of various models. In 1875, based on the Austrian model of (die Strafprozessordnung) “Penal Order” from 1873, which was itself based on the French model of the Criminal Code, the Croatian Parliament adopted the “Criminal Procedure for Croatia and Slavonia” which remained in force until 1929. In 1929 criminal procedural law was unified in the first Yugoslavia with the Judicial Criminal Procedure Code, which transposed all the significant elements of the Croatian code from 1875. Only a few years after World War II, the Croatian penal system (within the legal framework of the former Yugoslavia) relied on the Soviet example, which was abandoned completely in the 1950s. In 1953 the Criminal Procedure Act was significantly reformed again, reintroducing provisions from the pre-war first Yugoslavia law1. Following its independence in 1990, with the adoption of the two most significant acts from the field of criminal law (Criminal Code and Criminal Procedure Act), the Republic of Croatia developed its own penal system.

3.1.1. Fundamental principles and miscellaneous The substantive criminal legislation is divided into criminal offences and misdemeanours. Misdemeanours are regulated by the Misdemeanour Act2, and by a whole range of other acts. Criminal offences are regulated by the Criminal Code3, although secondary criminal legislation exists as well (criminal offences regulated by other acts, about 15 of them). The Criminal Code consists of a general section dealing with the general principles of criminal law (for example: self-defence, extreme necessity defence, sanctions etc.) and a special section listing specific criminal offences divided into sub-sections according to the element of protection. The principle of legality, which is considered a constitutional principle, is in force in the Republic of Croatia. The procedural criminal legislation model comprises a mixed type of criminal proceedings divided into three stages: a) the preparatory stage, b) the investigation, which is conducted by an investigating judge at the proposal of the state attorney, it contains strong interrogative elements and c) the main hearing, which includes a number of accusatory elements modified according to American procedural criminal law.4 The criminal procedure has been regulated in line with the fundamental principles of the Croatian Constitution: when applying repression everything not explicitly permitted (by law) is prohibited, and interventions into the fundamental rights and freedom of citizens are permitted only when stipulated by law, and upon a decision made by the competent court on the basis of law. In addition to the stated principle of legality (nullum crimen, nula poena...) and the exclusion of unlawful evidence, the more important principles of the criminal procedure are the accusatory principle (a criminal procedure may be instituted and conducted only at the request of an authorised prosecutor), the principle of legality (the state attorney has the obligation to institute criminal prosecution when there is reasonable doubt that a person has committed a criminal offence prosecuted ex officio), the assumption of the defendant’s innocence reinforced with the right to remain silent and the principle in dubio pro reo, the right to a defense counsel, the principle of free assessment of evidence, the principle of the main hearing’s openness to the public, the principle of directness (the court bases its decision only on facts and evidence presented at the main hearing), etc. 1 According to D. Krapac: “Criminal Procedural Law, 19 (2003) 2 OG 88/02 3 OG 110/97, 28/98, 50/00, 51/01, 111/03, 105/04, 84/05, 71/06 4 A verdict based on the request of the parties involved in the investigation, the obligation of the state attorney to propose, in summary proceedings, a sanction the defendant may agree with (both allowing plea bargaining), mandatory exemption of unlawful evidence in line with the fruit of the poisonous tree doctrine, etc.

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A criminal procedure may be instituted only upon the appropriate request of an authorised prosecutor. These are: the state attorney – for criminal offences prosecuted ex officio, a private prosecutor – for criminal offences prosecuted on the basis of a private lawsuit, and the injured party5 who may assume the role of the prosecutor if the state attorney has not instituted criminal proceedings or has withdrawn therefrom.

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In addition to the hereinabove mentioned, in the criminal procedure of the Republic of Croatia there are also forms of consensual action, where the state attorney is permitted, upon agreement between himself and the suspect regarding non-prosecution in relation to certain criminal offences, to not prosecute in the public interest or to withdraw from it in the early stages of the criminal proceedings.6 In criminal proceedings the criminal offence victim plays a significant role. In addition to the usual role of a witness, the victim, as the injured party in a criminal offence, has the right to participate personally in criminal proceedings or through his/her attorney; has the right to gather and/or present evidence, interrogate the suspect, witnesses, expert witnesses, and has the right to make a statement at the main hearing (after the state attorney). The injured party moreover has the right to file a property right claim and the right to reimbursement of expenses related to criminal proceedings. When the state attorney considers that there are no grounds for prosecution, the injured party, as private prosecutor, may assume his/her role and institute or continue the criminal prosecution in court. Police authorities conduct inquiries of criminal offences in order to identify perpetrators of criminal offences, secure prints and objects from criminal offences and gather information which may be useful for conducting criminal proceedings. Investigations of criminal offences encompass: the gathering of information from citizens, the search of vehicles, individuals and luggage, the restriction of movement in a certain area (blockades, raids, stakeouts, etc.), establishing the identity of individuals and objects, etc. As a rule, police authorities cannot interrogate citizens as witnesses, expert witnesses or suspects, and information gathered in this manner is not admissible as evidence in criminal proceedings. The only exception is the interrogation of the suspect in the presence of his counsel, the minutes from such an interrogation may be admitted as evidence in criminal proceedings. Police authorities conducting an inquiry may take special measures temporarily limiting constitutional rights and freedoms (for example monitoring and audio recording phone conversations, secret surveillance and recording etc.). This is only permissable following the issuance of a special order by an investigating judge. The Witness Protection Unit within the Police Directorate of the Ministry of the Interior is in charge of implementing protection programmes according to the Witness Protection Act. The protective measures include: physical and technical protection, relocation, measures for concealing identity and ownership, and changes of identity. Police authorities submit the results of inquiries to the state attorney who may file an investigation order with the investigating judge to institute an investigation. The investigation encompasses a group of procedural actions, which are conducted by an investigating judge at the request of the authorised prosecutor, when there is reasonable doubt that a certain person has committed a criminal offence. In the investigation, evidence and facts are gathered for the authorised prosecutor (as a rule the state attorney) to use when deciding whether to issue an indictment or to suspend the procedure. Investigation actions undertaken by an investigating judge comprise: the search of a home or individuals, interrogation of the defendant, witnesses and expert witnesses, identification, on-site investigation, reconstruction of events etc. Upon completion of the investigation the investigating judge submits the case files to the state attorney who then rules on the issuance of an indictment.7 The state attorney files the indictment with the court reviewing it when the defendant raises an objection or when the hearing judge finds that the indictment must be reviewed. The court schedules the main hearing if the indictment becomes final (e.g. upon rejecting a complaint). All evidence gathered in the investigation must, as a rule, be directly presented at the main hearing (the principle of directness). The court reaches its verdict based solely on evidence presented at the main hearing. The Ministry of Justice is authorised to carry out administrative and other activities relating to: the fields of civil, criminal and commercial law and administrative judicature; the organisation and operation, as well as professional education and training of judges, state attorneys and employees of courts, the state attorney’s office, the authorities in charge of conducting misdemeanour procedures and authorities in charge of implementing misdemeanour sanctions and penalties, the administrative and other tasks of notary publics and attorneys; court and public notary fees, international legal help and other forms of legal help; the execution of criminal and misdemeanour sanctions, amnesty and parole and computerization of the judicial system. The Ministry supervises the administration tasks conducted in the judicial bodies8, the state attorney’s office and authorities in charge of conducting misdemeanour 5 The injured party is a person whose individual or property rights have been violated or endangered by the criminal act. 6 See more about consensual proceedings in Krapac, supra note 2, p. 59-62 7 It needs to be emphasized that a project reforming the criminal procedure is under way, according to which the investigation would no longer be under the authority of county courts, but under the state attorney’s office and police authorities. A smaller number of investigating judges would monitor the legality of completed investigating actions, and would further decide on the defendant’s custody. A draft proposal of the new Criminal Procedure Act has not yet been completed (March 2007).

8 The judicial administration, see below under 3.1.4.


Institutional Framework of Witness Support in the Republic of Croatia

procedures. The Department for Witness Support and Participants in War Crimes Proceedings operates within the Directorate for International Legal Assistance, Cooperation and Human Rights. The Department provides professional legal and physical protection, psychological help and assistance in preparing for and organising travel, for witnesses and other participants to main hearings (investigation hearings) in criminal proceedings for war crimes conducted before courts, within and outside the territory of the Republic of Croatia.

3.1.2. Sources of law The sources of criminal law in the Republic of Croatia are comprised of the Constitution of the Republic of Croatia, acts and international law. Judicial practice is not a source of criminal law, however decisions, particularly those of the Supreme Court of the Republic of Croatia can be taken to create legal positions which may be used as roadmaps in certain legal situations. The most important sources are the Criminal Code (CC),9 the Criminal Procedure Act (CPA)10, the Act on the Office for the Prevention of Corruption and Organised Crime (ZUSKOK)11. Other significant sources of law include: the Police Act,12 the Act on the Execution of Prison Sentences,13 the Witness Protection Act14, Act on the Liability of Legal Persons for Criminal offences15. In addition to the acts and international agreements which have been entered into and ratified in accordance with the Constitution and the judicial practice, judges, and others involved, use legal references (monographs, commentaries, articles and the like) in their actions and decisions.

3.1.3. Courts in the Republic of Croatia In the Republic of Croatia the state authority is organised based on the three-way division of power between the legislative, executive and judicial. Judicial power is autonomous and independent, and judicial powers are executed by courts acting in accordance with the Constitution of the Republic of Croatia and its laws. Courts also rule on the basis of international agreements, which have been entered into and ratified in accordance with the Constitution, which have been published and which legally supersede acts.16 The structure of judicial power in the Republic of Croatia is as follows:

SUPREME COURT OF THE REPUBLIC OF CROATIA

HIGH COMMERCIAL COURT OF THE REPUBLIC OF CROATIA

COMMERCIAL COURTS

COUNTY COURTS

HIGH MISDEMEANOUR COURT OF THE REPUBLIC OF CROATIA

ADMINISTRATIVE COURT OF THE REPUBLIC OF CROATIA

MUNICIPAL COURTS

MISDEMEANOUR COURTS

ADMINISTRATIVE BODIES

9 Supra note 3 10 OG 110/97, corrigendum 27/98, 58/99, 112/99, 58/02, corrigendum 143/02, 115/06 11 OG 88/01, 12/02, 33/05 12 OG 129/99 13 OG 128/99, 55/00, 59/00, 129/00 and 59/01 14 OG 163/03 15 OG 151/03 16 Art. 140 of the Constitution of the Republic of Croatia, OG 56/90, 135/97, 8/98, 113/2000, 124/2000, 28/2001

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There are a total of 251 courts and 1,490 judges in regular courts, in addition to 447 judges at misdemeanour courts and the High Misdemeanour Court. The penal branch of the judicature is handled by municipal courts (104 of them), county courts (21 of them17) and the Supreme Court of the Republic of Croatia.18 Municipal courts are authorised to handle criminal cases where an imprisonment sentence of up to ten years is envisaged. County courts handle three types of criminal judicature. County courts are appellate courts for decisions reached by municipal courts. At county courts investigating judges conduct investigations pursuant to the requests of state attorneys for criminal offences where an imprisonment sentence of more than five years is envisaged19 Finally, county courts act as courts of first instance for criminal offences where an imprisonment sentence of more than ten years is envisaged, for criminal offences stipulated by the ZUSKOK20 for war crimes and certain criminal offences for which special jurisdiction of county courts has been prescribed.21 The Supreme Court acts as the court of second instance for the decisions reached at county courts in first instance and exceptionally as a court of third instance for appeals. In relation to the criminal offences referred to in the ZUSKOK, four investigation centres have been set up (Osijek, Rijeka, Split and Zagreb) where experienced investigating judges with the competencies required to investigate the most serious and the most complex forms of criminal offences operate. According to ZUSKOK, chambers conducting proceedings (main hearings) consist of three professional judges, appointed by the president of the same county court for a four-year term of office, from those judges experienced in resolving the most complex cases.22 The jurisdiction of the four largest county courts (Osijek, Rijeka, Split and Zagreb) has been determined for criminal proceedings of war crimes. Here special investigating departments have been set up consisting of experienced judges with the competencies necessary to investigate the most serious and the most complex criminal offences. The main hearing is conducted by chambers consisting of three judges each, consisting of judges experienced in handling the most complex cases.23 The judges in question have for the most part attended different professional training related to war crimes. Investigations of criminal offences are conducted by special departments within police authorities and work on these cases is conducted by specially educated deputy state attorneys.

3.1.4. Judicial administration Judicial administration operations have been set out in the Courts Act and the Ordinance on Internal Court Procedures (Judicial Rules of Procedure).24 The court president conducts the activities of judicial administration encompassing: ensuring conditions for the proper operation and work of the court, ensuring the orderly and timely completion of tasks in the court, tasks regarding certified court appraisers, certified court interpreters and expert witnesses, care for the professional training of judges, judicial advisors, judicial trainees and other officials and employees of the court, activities pertaining to the financial and material operations of the court, etc.25 In addition to the court spokesman, courts with more judicial chambers, or individual judges handling issues from one or more related areas have departments comprised of judges specifically handling these cases.26 The four largest county courts (Osijek, Rijeka, Split, Zagreb) have investigating departments (carry out investigations and investigating actions), first instance criminal departments (conducting main hearings) and second instance criminal departments (deciding upon appeals against decisions reached at first instance municipal courts). The work of a particular department is managed by the department’s chairman, who is appointed on an annual basis by the court president.27

17 County courts have been established in the following cities: Bjelovar, Čakovec, Dubrovnik, Gospić, Karlovac, Koprivnica, Osijek, Požega, Pula, Rijeka, Sisak, Slavonski Brod, Split, Šibenik, Varaždin, Velika Gorica, Virovitica, Vukovar, Zadar, Zagreb and Zlatar. 18 No data is available regarding the exact number of judges handling exclusively or mainly criminal cases. Experience from this and other surveys indicates that the number of judges is around 300, of which 170 are at county courts. 19 Not all county courts have investigating centres (e.g. Čakovec, Velika Gorica, Zlatar). Courts with investigating centres conduct on-site investigations,

obtain escorts by police officers, have a detention unit etc. Certain county courts conduct tasks in relation to investigation for county courts which do not have investigating centres (the County Court in Zagreb for the area covered by the County Courts in Velika Gorica and Zlatar, the County Court in Varaždin for the area covered by the County Court in Čakovec). 20 Supra note 11 21 This refers to the criminal offences laid out in Art. 92 (manslaughter), Art. 125 (kidnapping), Art. 188, Paragraph 1 (rape), Art. 192, Paragraphs 1 and

3 (sexual intercourse with a child) and Article 337, Para. 4 (abuse of position and authority), and for the criminal offences referred to in Title XII of the Criminal Code (criminal offences against the Republic of Croatia). 22 ZUSKOK, Art. 24, 25 and 27 23 Articles 12 and 13 of the Act on Implementing the Statute of the International Criminal Court and on the Prosecution of Criminal offences Against

the International Law of War and the International Humanitarian Law (OG 175/03) 24 OG 80/97 25 ZS, Art. 29 and 30 (OG 150/05, hereinafter the ‘ZS’). 26 ZS, Art. 31 and 32, para. 1 27 ZS, Art. 32, para. 2


Institutional Framework of Witness Support in the Republic of Croatia

The criminal branch of the judicature also incorporates judicial advisors (individuals with a law degree and bar exam).28 In the first instance criminal departments judicial advisors conduct certain investigating actions (including questioning of witnesses) and submit draft proposals for decisions to a judge who may reach a decision based on this proposal. The first instance criminal department judicial advisors of the extrajudicial chamber prepare draft decisions and propose the adoption of decisions relating to the determination, prolongation or termination of custody, decisions concerning objections against the indictment, decisions regarding the renewal of proceedings, etc.29 In the work of second instance departments judicial advisors report on the state of the case file and prepare the draft decision.30 Professional associates at courts are officials who may be of different professions with a two-year college degree or a university degree and the prescribed work experience. The criminal branch of the judicature mostly comprises special education professionals or pedagogues assisting the judge in working on issues requiring special professional knowledge31, and in cases which concern actions against criminal offence perpetrators who are minors. There are also judicial interns at courts. They are appointed by the Minister of Justice at the proposal of the court president, and following a vacancy announcement. Judicial interns are introduced to court operations and prepare themselves for the bar exam. They participate in actions concerning the criminal branch of the judicature, but in the course of their internship they prepare draft decisions, handle court mail, etc. Each judge has a recording clerk who is a civil servant, employed by the Ministry of Justice of the Republic of Croatia.

3.2. Protection and witness support in the penal system of the Republic of Croatia No legal regulations exist in the Republic of Croatia which directly provide witness support in the sense of UNDP’s project analysis. The provisions of the CPA envisage witness protection32, however certain provisions may only be used for witness protection in specific situations (questioning in a certain case file). Witness support may also be provided based on the provisions of other acts, and for the most part this involves out-of-procedure protection, meaning it is not directly linked to the questioning of the witness at the main hearing (or the investigation hearing). Judicial practice and a constant increase in the number of cases where violence is a factor, which is manifested as a serious intrusion of an individuals psychological and physical integrity, indicate the need to provide more comprehensive protection to witnesses than that presently in force.

3.2.1. The witness support system’s legal and institutional framework Witness protection is ensured by procedural and out-of-procedure means. Procedural means include: witness protection in criminal proceedings, securing a witness’s testimony by ensuring procedural quality and witness protection while testifying. The out-of-procedure means include a range of measures not encompassed by criminal proceedings, intended for witness protection. This primarily involves special laws. An efficient witness protection procedure can be achieved by follow-up measures being taken during and extended beyond the provision of the testimony (protection programmes). A witness must be advised of these measures and the overall protection procedure.

28 ZS, Art. 119, para. 2 29 CPA, Art 18. and 19 30 ZS, Art. 120, Para. 4, Item 7 31 ZS, Art. 121 32 Witness – a person different from the defendant who will probably be able to provide information regarding facts being established in criminal

proceedings and who was summoned by the court to testify

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Institutional Framework of Witness Support in the Republic of Croatia

An important element in witness protection is the obligation to keep information regarding the witness confidential.33 Another possibility is the exclusion of the public from the main hearing (Article 293 of the CPA).34 Other options are to limit the recording of the main hearing35 and to take measures to maintain order in the courtroom (Article 299 of the CPA) 36.

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Witness protection includes the manner in which the witness is questioned and participates in the procedure, as well as protective measures for the witness and those close to him/her outside of the proceedings (Article 238 of the CPA). Protection refers to the threatened witness (Article 238a, paragraph 1 of the CPA).37 It is applied once the need for treating the witness as threatened has been established in the proceedings, as follows: if it is probable that the witness would, by giving a statement or answering a certain question, expose herself/himself or a person close to him/her to a serious threat to their life, health, physical integrity, freedom or property on a large scale, the witness may decline to provide personal information, answers to certain questions or render statements at all, until witness protection has been put into place.

33 CPA, Art. 155, para. 6: If the possibility referred to in Article 238, paragraph 4 of this Act exists (the amended Article now refers only to a minor

in paragraph 4) the investigating judge shall, upon request of the state attorney, witness or ex officio, protect in an appropriate manner the confidentiality of data regarding the persons whose statements or testimonies are in case files (by transcribing minutes or official notes without the person’s identification data, by filing this data separately etc.); CPA, Art. 182, para. 7: The state attorney’s office and the investigating judge shall, in an appropriate manner (by transcribing minutes or official notes without identification data, by removing official notes from the file) prevent unauthorised persons, the defendant and his attorney from identifying the persons conducting the measures referred to in Article 180, paragraph 1, items 4 and 5 of this Act. If these persons testify as witnesses the court may act in accordance with provisions of Articles 238.a to 238.d of this Act; CPA, Art. 207: If this is required for the progress of criminal proceedings or for safeguarding data confidentiality, upholding public order or due to moral reasons, the investigating judge or a police officer in charge of conducting a certain investigating action shall order the persons questioned or present at investigating actions or those having access to the investigation file to keep as confidential all facts or data discovered in such process and warn them that a violation of confidentiality constitutes a criminal act. This order shall be recorded in minutes of the investigation action in question, i.e. it shall be recorded on the file being reviewed and signed by the person warned about the confidentiality rules. CPA, Art. 299, para. 4: The parties and the defense attorney may audio record the course of the main hearing when the public has not been excluded. Personal information about the defendant, the injured party or witnesses so recorded represent confidential information and can be used exclusively for the needs of the criminal proceeding. CPA, Art. 315, para. 2: When the public has been excluded from the main hearing the minutes must indicate that the presiding judge had warned everyone present of the consequences if they unlawfully disclose what they learned at the main hearing as confidential information. 34 From the opening remarks to the conclusion of the main hearing the chamber may, at any time, either ex officio or upon motion from the parties,

but always after their interrogation, exclude the public for the entire main hearing or part thereof, if this is necessary in order to: 1) protect the personal or family life of the defendant, the injured party or another participant in the proceedings, 2) protect the interests of minors. 35 Article 299, paragraph 3 of the CPA:

(3) Photographic, film, television and other recordings by technical devices are not permitted in a courtroom. Exceptionally, the president of a county court may permit photographic, and the president of the Supreme Court of the Republic of Croatia, television or other recording at a particular main hearing. When recording is permitted, the chamber may decide at the main hearing and based on justified reasons, to prohibit the recording of certain parts of the main hearing. (4) The parties and defense attorney may audio record the course of a main hearing from which the public has not been excluded. Personal information about the defendant, the injured party or witnesses so recorded represent confidential information and may only be used for the needs of the criminal proceeding. 36 A judge may order the search of all persons, the removal of the audience from the courtroom, set fines and order the removal from the courtroom

of participants in the proceedings. 37 Threatened witness – a witness for whom there is probability that by testifying or answering a certain question he/she would expose herself/

himself or persons close to her/him to a serious threat to their life, health, physical integrity, freedom or property on a larger scale (CPA, Art. 238a, para. 1); Key witness (repentant) – a member of a criminal organisation for whom the county court extrajudicial chamber has by a decree accepted the motion filed by the Chief State Attorney for his interrogation as a witness in criminal proceedings pursuant to a bill of indictment issued by the Office for the Prevention of Corruption and Organised Crime (USKOK), after having committed a criminal act; Protected witness – a witness who, due to the significance of his/her information for criminal proceedings, has been encompassed by the Protection Programme according to the Witness Protection Act due to the probability of causing threat to his/her life, health, physical integrity, freedom or property on a larger scale; Confidant – a person who is not a member of police authorities, and who participates, based on the orders of the investigating judge, in measures temporarily limiting certain constitutional rights of citizens, as a rule prior to committing a criminal act; Undercover agent – a police officer who, at the order of the investigating judge, undertakes measures in criminal proceedings that temporarily limit certain constitutional rights of citizens.


Institutional Framework of Witness Support in the Republic of Croatia

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A special means of questioning a threatened witness has been laid down under Article 238c of the CPA.38 It is most frequently applied during an investigation, and also at times during the main hearing. The legal basis and possibilities of providing witness support in relation to their testimony at the main hearing are laid out in Article 338 of the CPA. In exceptional cases the chamber may decide to temporarily remove the defendant from the courtroom if a co-defendant or a witness refuses to testify in his presence or when circumstances indicate that in the defendant’s presence they will not speak the truth. Circumstances indicating that the witness refuses to testify or will not speak the truth are usually obvious before questioning the witness. This is the moment when the support should be “initiated” in court, which at present frequently depends on the capabilities of a particular judge. In practice circumstances really means that the witness is afraid to testify in the defendant’s presence in the courtroom. This happens most frequently in relation to criminal offences involving robbery, but also in relation to (attempted) murders, rapes, kidnapping. In this situation, through an appropriate approach to the witness, he/she is informed about the legal possibilities of testifying without the defendant’s presence in the courtroom. Another legal provision which may serve as witness support (Article 239, paragraph 5 of the CPA) is the option of questioning the witness by technical devices which transfer of images and sound. This means of questioning ensures that parties may question the witness without being present in the room where the witness is located. When deciding on whether to apply this method of questioning, the court must take into consideration the age, physical and mental condition or other justified interests of the witness. The latter circumstance (or other justified interests of the witness) are undeniably the existing circumstances indicating the need for support (or protection) of the witness. In practice this measure is applied most frequently when questioning a threatened witness in the sense of Article 238c and 238d of the CPA. The most common examples of threatened witnesses are undercover police investigators, and the most common cases where this questioning method is used are those proceedings involving criminal offences of drug abuse. In the course of the investigation, and after having issued the indictment, it is possible to order the following precautionary measures: a restraining order or prohibiting establishing or maintaining contact with a certain person (Art. 90, para. 2, item 4 of the CPA). This measure is seldom applied in criminal proceedings. Its use in misdemeanour procedures is more common, particularly in cases involving domestic violence. However, situations in which it is applied in criminal proceedings are particularly those where the defendant is under a restraining order or prohibited from establishing or maintaining contact with a witness, and which may provide the witness (injured party) some protection. When this measure is violated, the court orders custody. The legal basis for ordering the custody referred to in Article 102, paragraph 1, item 2 of the CPA (reasons of collusion) exists once it has been assessed that there is imminent danger that the defendant will obstruct the criminal proceedings by influencing witnesses (participants or undercover agents). This reason lasts throughout the investigation in the majority of situations, normally until the witness has testified. Extending custody for this reason after filing criminal charges is rare, as according to judicial practice it is assumed that once the witness has testified and criminal charges have been filed, there is no further danger of obstructing the criminal proceedings, unlike before the testimony when this danger exists due to the possible influence on the witness before testifying.

38 (1) The motion for a special means of questioning and participation of a witness in the proceedings is filed to the investigating judge in a sealed

envelope with the remark “threatened witness – confidential”. The motion contains the state attorney’s indication of a special means of participation in the procedure and a special means of questioning the witness he has proposed and the grounds for this. Concurrently with the motion he will submit protection measures for the witness and persons close to her/him outside of the proceedings, approved by the authority conducting the witness protection programme and the facts on the start of its implementation. (2) The motion referred to in paragraph 1 above may be submitted by the state attorney to the investigating judge before the first testimony of a witness; (3) If, after reviewing the motion, the investigating judge decides there are no grounds for the state attorney’s motion, he will request the opinion of the chamber referred to in Article 20, paragraph 2 of this Act. (4) If the investigating judge accepts the state attorney’s motion, he will determine the pseudonym of the witness and a special means of questioning and participation in the proceedings. The parties and the witness are entitled to file an appeal against the decision of the investigating judge. (5) In the cases referred to in paragraphs 3 and 4 of this Article the chamber must reach a decision within three days. (6) The facts on the witness testifying and participating in the proceedings in a special manner will be sealed in a separate envelope by the investigating judge and submitted to the authority conducting the witness protection programme for safekeeping. This shall be recorded in the file by using the pseudonym of the threatened witness. The sealed envelope containing facts on the witness may be requested from the authority conducting the witness protection programme, and opened, only by the appellate court when deciding upon the appeal against the verdict. It shall be indicated on the folder that it has been opened and the names of chamber members its contents were disclosed to listed. Once the chamber members have been informed about its contents the envelope will be resealed and returned to the authority conducting the witness protection programme. (7) Once the ruling on the special means of questioning and participation of the witness enters into force, the investigating judge shall schedule the hearing for questioning and summons the witness in the manner securing the implementation of measures for the protection of the witness and persons close to her/him.

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Institutional Framework of Witness Support in the Republic of Croatia

Special means of protection are provided for witnesses who are minors or children regarding their testimony (Article 238, paragraphs 4 and 5 of the CPA).39

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All of the previously-mentioned forms of protection are most frequently provided at court during the proceedings (when testifying during the investigative stage, at the main hearing, or during the time the witness is in court). These types of witness support require the involvement of other institutions (for instance – custody is executed within the framework of the penitentiary system and under the authority of the Ministry of Justice of the Republic of Croatia).40

3.2.2. Witness support system in relation to their needs The legal and institutional framework provides a solid basis for almost all forms of witness support (and protection) prior to, during and after the termination of criminal proceedings.41 Witness support depends on the assessment of a judge, the technical and physical capacities of a certain court and on whether the witness’s need for support has been established. The latter requires an adequate assessment (of a judge, judicial police officer etc.) but also the readiness of the witness to indicate the circumstances demonstrating the need for support. In such situations the judge uses one of the above-indicated measures. Experience indicates that the most common form of support is the removal of the defendant from the main hearing during the witness’s testimony, since witnesses in proceedings for violent criminal offences (most often robbery) quite frequently ask for some form of protection. This, of course, does not mean other measures are not applied. This particularly refers to ordering imprisonment due to reasons of collusion and the previously-mentioned precautionary measures implemented by courts in practice. Situations exist at the main hearing where the judge combines the measures for maintaining order in the courtroom and the removal of the defendant from the courtroom, if a witness refuses to testify in the defendant’s presence. Other measures (exclusion of the public, the obligation to keep information on the witness confidential, limited recording) are rarely applied. Questioning by using technical devices for the transfer of images and sound are most often used for the testimonies of threatened witnesses (undercover agents) and in procedures involving drug abuse.

3.2.3. Example of organising witness support in court Experience in providing witness support in the Republic of Croatia after its independence, for criminal proceedings conducted due to reasonable doubt that war crimes were committed, is best portrayed through the experience regarding the case conducted against the defendant Dinko Šakić. At the time (and today) court(s) do not have a special service providing witness protection. Procedural actions in this case involved the protective measures taken prior to the witnesses’ entry into the courtroom and following their testimony. The actions taken pertained to the summons, transport, reception and stay of witnesses. The summons were delivered by a court courier, accompanied by a letter from the court president’s office detailing information on a contact person, on ensuring transport and stay. The summons contained all the information prescribed by law, including the facts on who to contact in case of need and that person’s telephone number (no abuse was recorded) and on providing the option of transport and parking.

39 When questioning a minor, particularly if he/she has been injured by a criminal offence, considerate action will be taken so that the questioning

does not have a harmful influence on the minor’s psychological condition. When a child injured by the criminal offence is questioned as a witness, the questioning shall include a psychologist, pedagogue or another professional. The investigating judge shall order that the questioning be audio and video recorded. The questioning shall be conducted without the presence of a judge or parties, in a room where the child is located, so that the parties may ask him questions through the investigating judge and the psychologist, pedagogue or another professional. 40 For the purpose of precision it must be emphasized that custody execution supervision is under the authority of the president of the competent

court (where the prison unit is located). The court president (or a judge appointed by him) has the obligation to make a round and see the prisoners at least once a week, and if he/she finds it necessary even without the presence of a judicial police officer, he/she files a report on the diet of the prisoners, the fulfilment of their other needs and how they are treated. 41 It must be stressed that a witness protection system exists and that it is carried out in accordance with the Witness Protection Act (OG 163/03).

Protection is provided to threatened persons and persons close to them, exposed to a serious threat to their life, health, physical integrity, freedom or property on a larger scale due to testimonies in criminal proceedings for criminal offences envisaged under this Act (encompassing all criminal offences for which an imprisonment sentence of five years or higher is envisaged, for criminal offences against the Republic of Croatia, against values protected by international law and criminal offences pertaining to organised crime). The protection is implemented and organised by the Unit for the Protection of Police Forces following a decision of a Commission consisting of five members (the President of the Supreme Court of the Republic of Croatia, a representative from the State Attorney’s Office of the Republic of Croatia from among deputies of the Chief State Attorney, a representative of the administration for the jail system of the ministry in charge of justice, a representative of the Ministry of the Interior – Police Directorate and the Protection Unit director).


Institutional Framework of Witness Support in the Republic of Croatia

3

The witness was driven to court by a court vehicle, entered the court through a back door prior to the commencement of the proceedings. The witness was met by the judge, who at that time also carried out the duty of the court spokesman for this case file (although the function of a spokesman did not exist at the time). The witness was given a full explanation of the court procedure (entry into the courtroom, his/her place to sit, the course of the main hearing, warnings to the witness, etc.) and informed that he/she would be driven home after testifying. Naturally, all this was done without discussing the contents of the testimony. Whilst at court the witness remained in a special room until the testimony began and after its completion until their departure from the court, in order to avoid any encounter with the parties, journalists or the public. This short description does not imply that all proceedings included this procedure. This example is appropriate as a reference as there were no safety or other issues in relation to the witnesses’ arrival and testimony in court. The public is aware of situations where witnesses have not come to court due to feeling insecure. The treatment of witnesses in the Dinko Šakić case shows that such situations may be avoided.

3.2.4. Judicial administration, organization and judicial practice of witness support There is no prescribed institutionalised service which provides witness support in courts in the Republic of Croatia. When the need exists in the high profile media cases or in cases where the possibility of witnesses being threatened exists, support is organised ad hoc. In such situations the Office of the Court President ensures the organisational conditions for support. An expert assistant is usually employed in courts (most frequently a special education professional).42 Most frequently the expert assistant works in cases involving minors. Judicial police also function in courts and are able to react if the need for immediate protection or support of witnesses arises, or upon the orders of a judge. A judge’s role in witness support is based on the procedures for implementing the legal options mentioned above. These measures most frequently include removing the defendant from the courtroom during the testimony of a witness, and measures for holding the main hearing. In the implementation of these measures, situations in which a judge must indicate to the witness that he/she is safe by additional actions, and that nothing will happen to him/her are not rare. In other words, in addition to the sometimes strict application of the law, the judge may also be in a situation of offering witness support in the sense perceived hereunder. The four listed courts are able to obtain the testimony of a witness by video link with an interconnection between courts. The technical possibilities have been secured within the training programme for the criminal processing of war crimes. Within this programme most of the judges have undergone professional training in order to conduct such cases. In the regular procedure, including proceedings for criminal offences in which witnesses who may need support are participating, witnesses are summoned by judge’s order to determine an investigation hearing or an order to determine the main hearing. Summons are delivered by mail and witnesses arrive at court on their own. In certain exceptional situations it is possible to schedule the testimony out-of-court (for instance if the witness cannot come to attend due to an illness). Before arriving at the courtroom the witnesses must go through a security check at the entrance, conducted by judicial police officers (identification and metal detector check).43 Witnesses wait for the call to enter the courtroom in the hallway, frequently close to the defendant (if the latter is not in custody) or the defendant’s family and/or friends. The call is usually performed by the court clerk. Witnesses who have not testified are not present during the testimonies of other witnesses at the main hearing, and all witnesses who have testified are free to stay at the hearing (and during the interrogation of the defendant). Witnesses who are also injured parties of a criminal offence have the right to be represented by an attorney during the proceedings and at the main hearing, as well as the right to ask the defendant questions. Following their testimony witnesses have the right to request reimbursement of their expenses related to their appearance at court (travel expenses), and their daily expense allowance must be paid by their employer who can then obtain reimbursed from the court. Their expenses are reimbursed from the court budget, and are included in the criminal proceedings expenses which, at the end of the trial and based on a court decision may be borne by the defendant, if found guilty. No resources are budgeted to provide refreshments (food or drink) to the witnesses in case they have to stay at the court longer, and there are no facilities at the court for this purpose.44 This situation has been addressed on an exceptional basis for specific proceedings (for instance at the trial of Dinko Šakić). There is no obstacle, however, to

42 This should not be confused with judicial advisors who are law graduates and assist judges in everyday judicial tasks, as explained previously. 43 A judge has the option of ordering a search of persons participating at the main hearing (CPA, Art. 299, para. 1). 44 This, of course does not refer to witnesses who have the status of threatened witnesses and who, as a rule, testify by video link from another (secret)

room, the location of which is known only to the judge.

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Institutional Framework of Witness Support in the Republic of Croatia

providing refreshments for witnesses from the court budget or a separate room for this purpose in exceptional and specific cases. These arrangements can only be temporary due to limitations of space and due to the existing usage of rooms, as no rooms are empty on a constant basis which could be used by witnesses. In regular proceedings the witnesses leave the court on their own.

38

Cooperation with services existing outside the court (psychologists, pedagogues, special education professionals) is exceptionally rare and is implemented only in proceedings involving minors. It must be mentioned that the Department for Support to Witnesses and Participants in War Crimes Proceedings has been established within the Ministry of Justice, but as yet has no developed procedural practice.


4

PROTECTING THE RIGHTS OF VICTIMS/WITNESSES AND PROVISION OF SUPPORT: LEGAL FRAMEWORK, OPINIONS AND EXPERIENCES OF VICTIMS/WITNESSES


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4. Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses Today, significant awareness exists regarding protecting the rights of victims/witnesses and the need to provide support to them in criminal proceedings. Moreover, protecting the interests of victims of criminal offences is considered to be one of the main functions of the penal judiciary.45 A whole range of international and regional documents deal with this issue.46 International and regional documents stress, among other things, the need to secure the rights of victims, with regard to: a) respect and dignity and, within this, protection from secondary victimisation47, b) participation in all stages of the criminal proceedings, c) the provision of information and explanations regarding the progress of the case48, d) providing information to officials in charge of decision-making in the proceedings against the defendant, e) legal advice and legal help regardless of the victim’s financial situation, f ) victims’ protection, their right to privacy, their safety and protection from re-victimisation49, g) compensation for damages, h) the right to different forms of help (health care and social welfare, psychological counselling, financial help) which assuage the negative influence of the criminal offence and enable the victim’s rehabilitation within his/her family, at work and in the society. Witnesses who are not victims of a criminal offence are afforded rights because of their obligation to respond to the court summons, to testify, speak the truth and take an oath. These rights have been reasonably established as more restricted and refer mainly to the right for protection and the right to protection from intimidation, privacy protection and the protection of dignity and honour.50 In other words, witnesses are entitled to the right of protection from the state because the state has used its right to ask him/her to testify. Although this should occur automatically, the witness’s right for protection has unfortunately still not been determined as one of the fundamental principles of criminal proceedings.51 Using international and regional documents a model has gradually been formed which fulfills the rights of victims and witness protection in criminal proceedings, which should contribute to harmonisation, better implementation and further improvement of rights for victims/witnesses at the national level.

45 Preamble of Recommendation No. R (85) 11; Art. 3 of the Recommendation No. R (96) 8 46 See list of these documents in Appendix ad 8.1. where all international documents referred to in notes in the abbreviated form have been listed

with complete quotes. 47 Secondary victimisation is considered to be a lack of understanding for a victim’s suffering, due to which a victim feels isolated and insecure and

loses faith in obtaining help from the community or professional organisations. It is caused by attitudes, behaviour, certain actions or failures to act as a result of which the victim feels abandoned by the society as a whole. Secondary victimisation prolongs and increases traumatization of a victim and creates a feeling of alienation, according to the European Forum for Victim Services on the Social Rights of Victims of Crime, 1998. See also para. 45, interpretations of Recommendation Rec (2006) 8. 48 The victim may decide to not receive information. 49 Revictimisation or repeated victimisation refers to a person being a criminal act victim several times in a certain period (for ex. repeated burglary, continual domestic violence etc.). See Para. 45, interpretations of Recommendation Rec (2006) 8. 50 See Recommendation Rec (2005) 9 and Recommendation, R (97) 13 51 For more details about witness rights see Procedural protective measures for witnesses – Training manual for law-enforcement agencies and the

judiciary, 16-18, (Council of Europe, 2006)

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Image 1. Opinion on how the penal system fulfils the needs of victims and witnesses of criminal offences

Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

For years the criminal legislation of the RoC has not systematically followed global trends in the development of victims’ rights and the provision of protection and help for witnesses within criminal proceedings. As in most countries utilising the continental legal system, the victim (injured party) traditionally has the right to participate in criminal proceedings. Provisions regarding the protection of victims/witnesses in the course of criminal proceedings have continued to be adopted during the last three to four years, as part of fulfilling assumed international obligations, to ensure conditions for processing war crimes, and to facilitate proceedings in cases of organised crime. However, such provisions are still incomplete and their implementation in practice is sporadic. The victims’ right to reparations aside from traditional forms (property lawsuit) remains an issue yet to be discussed. Specialized institutions for providing help to victims and witnesses are practically non-existent. Just recently a non-governmental organisation providing help to witnesses began operating in the Vukovar area, as well as certain women’s organisations52 providing help to women and children who are victims of domestic violence and sex-related violence. The survey has shown that only 10.9% of witnesses-respondents consider the penal system in the RoC to completely fulfil the needs of victims, and 11.7% that it fulfils the needs of witnesses. See Image 1.

Victims’ needs It does not meet the needs at all 12,5 %

For the most part it does not meet the needs 25,0 %

Witnesses’ needs

Yes, it entirely meets the needs 10,9 %

It only partially meets the needs 51,6 %

It does not meet the needs at all 7,0 %

For the most part it does not meet the needs 23,4 %

Yes, it entirely meets the needs 11,7 %

It only partially meets the needs 57,8 %

It is precisely because of the relatively undeveloped system of support and protection of rights of victims/witnesses that UNDP decided to conduct a survey about the support provided and the protection of rights regarding victims/ witnesses in the criminal proceedings of the RoC, in order to determine the positive and negative elements in the existing system and its deficiencies, so that we could propose guidelines for future actions. The survey consisted of three independent parts: researching the opinions and experiences of victims/witnesses of violent criminal offences, researching the opinions and experiences of victims/witnesses of war crimes and researching the opinions and experiences of judges trying criminal cases. One of the questions in researching the opinions and experiences of victims/witnesses of violent criminal offences, as well as the opinions and experiences of judges dealing with criminal proceedings, referred to the rights or legal options a victim should have in criminal proceedings. The survey conducted on victims/witnesses of violent criminal offences included a list of 18 rights53 which a victim could have in criminal proceedings and victims/witnesses were asked to circle those they thought a victim should have. Most of the respondents (83.8%) circled the right to information on their rights, and 62.3% circled the right to information regarding the course of proceedings. This shows that the right to information is the most important right of a victim in the opinion of witnesses. This is understandable, since it is hard to fulfil any other right without information. In addition, 54.6% of respondents considered that the victim should have the right to an attorney

52 For instance B.a.b.e, Autonomous House, SOS Women help now Korak, etc. 53 The right to information about their rights; the right to information about the course of proceedings, the right to testify, the right to an attorney

who would represent his/her interest along with the state attorney, the right to an attorney during the testimony, the right to free legal help when the victim/witness cannot pay for the expenses on his/her own; the right to review the case file during the entire procedure; the right to compensation of damages from the perpetrator during criminal proceedings; the right to receive compensation of damages from the state when the perpetrator has not compensated them; the right to safety protection; the right to psychological and emotional support and help; the right to propose a sanction (sentence); the right to elect conciliation over trial; the right to appeal; the right to veto certain decisions of the state attorney; the right to describe how this criminal act had influenced the victim and indicate all consequences this criminal act had for the victim.


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4

during the testimony, or the right to an attorney who would represent the victim’s interests along with the state attorney (54.6%). Along with the right to information, the right to free legal help is the next most important right (68.5% of respondents), and the right to psychological and emotional support and help (60%). By their order of importance are the following two rights: the right to safety protection (58.5%) and the right to testify (56.2%). Witnesses-respondents have equally evaluated the right to privacy protection (50%) and the right to request compensation for damages from the perpetrator during criminal proceedings (49.2%). It is interesting that the right to compensation for damages by the state was less important to respondents (46.9%) than the right to claim the compensation for damages from the perpetrator during criminal proceedings (49.2%).54 The least number of witnesses-respondents considered that victims should be permitted to veto certain decisions of the state attorney (10%), the right to choose conciliation over trial (13.8%), the right to propose a sanction (14.6%). See Image 2.

The right to information regarding his rights

83,8 %

The right to legal help free of charge, when the victim is unable to pay for these expenses on his own

68,5 %

The right to information regarding the course of proceedings

62,3 %

The right to psychological and emotional support and help

60,0 %

The right to safety protection

58,5 %

The right to testify

56,2 %

The right to an attorney who would represent his interests along with the public prosecutor

54,6 %

The right to an attorney during the testimony

54,6 %

The right to privacy protection

50,0 %

The right to request compensation of damages from the perpetrator already within the scope of criminal proceedings The right to compensation of damages from the state when the perpetrator did not provide compensation of damages

49,2 % 46,9 %

The right to appeal

39,2 %

The right to describe how the criminal act affected the victim and all the consequences the criminal act had on the victim

37,2 %

The right to review the file during the entire proceedings The right to propose a sanction (penalty)

30,0 % 14,6 %

The right to choose conciliation over trial

13,8 %

The right to insist on a full trial

13,1 %

The right to veto certain decisions of the public prosecutor

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10,0 %

It is interesting to note that judges evaluated the rights of victims in the same way as the witnesses themselves. When asked which legal options except existing ones a victim should have in criminal proceedings, most of them circled psychological and emotional help, free legal help, when the victim is not able to finance these expenses, and compensation for damages from the state if the perpetrator has not or cannot compensate them. A much smaller percentage of judges and witnesses were of the opinion that the victim should have the right to veto, to propose the type and amount of sanction or the right to file an appeal. See Image 3.

54 Answering the question referring specifically to compensation of damages 59.4% of the respondents considered the state should compensate damages to the victim if the perpetrator is unable to do it in case of any criminal act, 7% were of the opinion the state should compensate damages only for violent criminal offences, and 4.7% only in relation to terrorism and war crimes. Only 11.7% of the respondents considered the state does not need to compensate damages to victims.

Image 2. Opinion of the witnesses regarding the rights victims should have in criminal proceedings


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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

90 %

82,7%

80 % 70 %

44

60,9%

60 % 50 %

37,3%

40 % 30 %

16,4%

20 % Image 3. Opinion of the judges about the legal options in addition to the existing ones that the victim (injured party) should have during criminal proceedings

8,2%

10 %

5,5% 0,0%

0% Psychological and emotional support and help

Free legal help in every case file if the victim is unable to pay the expenses on his own

Reimbursement from the state if damages were not or could not be compensated by the perpetrator

To file an appeal for all grounds based on which the verdict may be contested

To propose the type and amount of penal sanction

To veto certain decisions of the public prosecutor

Some other legal possibilities

The surveys have shown that both witnesses and judges find the provision of support to victims/witnesses and the protection of their rights exceptionally important, and some consider certain rights to be more important than others. In the survey itself, and in this text accordingly, we have concentrated only on the rights of victims/witnesses most closely connected to providing support to victims/witnesses55 prior to, during and after criminal proceedings: the right to information, the right for the victims/witnesses to be treated with respect, the right for safety protection and the right to privacy protection. Particular attention in the analysis has been paid to the actual services for support which, for the most part, ensure these rights. The above has been reviewed in the context of the recommendations and demands of international and regional documents, the good practices of international criminal courts and other countries, and in the context of the results of these surveys.56 Based on the surveys conducted and the analyses, we have proposed certain innovations and changes.

4.1. Support to victims/witnesses and support services The opinion today is that help for victims should be concise, organised and provided regardless of the needs and interests of the penal system itself. Organisations and/or services providing, or which could provide, such help must primarily focus on the actual help given to victims.57 The issues encompass the types of help victims should be provided with, who should be providing this help and how should the provision of this help be organised.

4.1.1. Support for victims/witnesses and support services in international documents Countries should ensure, or promote the creation of, services which help victims and witnesses of criminal offences to help themselves, and encourage non-governmental organisations to help victims of criminal offences. Services may be public, private or those of non-governmental organisations. Research has shown that in this context nongovernmental organisations which help victims are exceptionally successful.58 However, for efficient operation non-governmental organisations require state aid.59 These services should be easily accessible, must offer free

55 A whole range of very significant issues from the aspect of victims’ rights (for example the right to legal help, the right to legal help free of charge, the right to compensation of damages) was not encompassed by our survey and the accompanying text. 56 This text encompasses primarily and integrally the results analysed from the survey of experiences and opinions of witnesses of violent criminal offences, while survey results, opinions and experiences of judges and war crimes victims have been analysed only for issues with a link to survey results of the opinions and experiences of witnesses of violent criminal offences. 57 Para. 38 and 39; interpretations of Recommendation Rec (2006) 8. 58 Brienen, M.E.I., Hoegen, E.H., Victims of Crime in 22 European Criminal Justice Sytems: The Implementation of Recommendation (85) 11 of the Council of Europe on the position of the Victim in the Framework of Criminal Law and Procedure, Niemegen, Netherlands: WLP, 2000. 59 Therefore, 2001 EU Framework Decision on the Standing of Victims in Criminal Proceedings of 15 March 2001 (2001/220/JHA) OJ, L 82, 22 March 2001 calls on countries to promote services for the provision of support to victims (Art. 13)


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

social, emotional and financial help, prior to, during and after the trial, they must have the competencies to serve the interests of victims/witnesses, must provide information to victims regarding their rights and the services at their disposal, must refer victims to other services when necessary, and respect the regulations pertaining to data confidentiality regarding the provision of help. Countries are encouraged to create specialised centres for helping victims of sex-related and domestic violence, and victims of mass victimisation, including terrorism. Countries are furthermore encouraged to establish national SOS phone lines for victims of criminal offences, operating 24 hours a day, 7 days a week. Countries must take measures to coordinate the work of the different services providing help to victims and must ensure that these services provide comprehensive help, they must create good practice standards, ensure appropriate training for the personnel in these services, and have these services at the Government’s disposal for consultations regarding strategies and regulations in the field of protecting victims of criminal offences.60 Countries must ensure that the people who come in contact with victims of criminal offences as part of their work are familiar with victims’ rights, the need to treat victims with respect and dignity, and are informed about the negative consequences a criminal offence has on a victim. Penal authorities must be familiar with the victims’ needs for information and help, and who to refer the victims to for obtaining adequate information and help. A positive attitude towards victims must also be developed with other services which come in contact with victims: health services, social welfare services, education or employment authorities. Embassies and consulates should provide their citizens-victims of criminal offences with appropriate information and help.61 Countries must identify and support measures which are intended to rectifying the negative consequences a criminal offence has on the victim, and make sure help has been provided in their rehabilitation at home, at work and in the community in general. Help for victims must be free of charge, at least immediately after a criminal offence has been committed against the victim. Whenever possible, help given to victims must be provided in the language they understand. Particularly vulnerable groups of victims (either due to their special characteristics – for example children, people with mental problems, or due to the criminal offence committed on the victim – for instance victims of sex-related crimes or domestic violence) must be provided with appropriately specialised forms of help.62

4.1.2. Support to victims/witnesses and support services at the International Criminal Court The Registry of the International Criminal Court (ICC) has organised a Victims and Witness Unit within the Registry, based on its Statute.63 This Unit, in cooperation and agreement with the Prosecutor’s Office must provide support to victims and witnesses, organise counselling and other appropriate forms of help to victims, to witnesses summoned to the ICC and to other individuals threatened as a result of their agreeing to testify.64 The Victims and Witness Unit employees are experts in the field of protection of victims and witnesses, in the knowledge of humanitarian and international criminal law, psychology, sexual and cultural diversity, health care, work with traumatized persons, etc.65 The function of this Victims and Witness Unit is to ensure, for individuals summoned to Court, as well as for people threatened due to their agreeing to testify, appropriate protective measures, the preparation of short-term and longterm protection plans, proposals about the adoption of these protective measures are provided to the Court, help for the victims and witnesses to obtain health, psychological and other appropriate assistance, training for people who are in contact with victims and witnesses on issues of trauma, sex-related violence, protection of victims and witnesses, data confidentiality and to determine, in consultations with the Prosecutor’s Office, how to treat victims and witnesses. Individuals summoned to Court as witnesses must be provided with information about where and how they can receive legal help, and they need to be helped in arriving at the Court and in testifying. Particular attention must be given to victims of sex-related violence and children, the elderly and the disabled.66 In order to effectively and efficiently operate, the Victims and Witness Unit must ensure that its personnel respects the privacy of individuals and data confidentiality. In order to ensure independence, the service is appropriately divided into providing help to prosecution witnesses and defense witnesses.67

60 Art. 5 Recommendation Rec (2006) 8. 61 Art. 4. id. 62 Art. 3 id. 63 Art. 43 of the Rome Statute 64 Id. and Rule 18 (c) and (d). of the Rules of Procedure and Evidence of the International Criminal Court (hereinafter: ICC Rules of Procedure) 65 See Rule 19 of the ICC Rules of Procedure in regards to Art. 43 of the Rome Statute 66 See Rule 19 of the ICC Rules 67 Id., Rule 18 (a) and (b).

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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4.1.3. Support and services providing support to victims/witnesses - comparatively

46

Services for help to victims/witnesses are often found in non-governmental organisations involved in the protection of women’s rights, protection of women from domestic and sex-related violence and better treatment of women within criminal proceedings (good examples of this are Sweden and the Netherlands). In a number of countries it is precisely the “women’s NGOs” which initiated the creation of organisations for providing help to victims (England, Wales and France). In a number of countries, organisations which provide help to victims were initially created at the local level, followed by their cooperation at the national level, primarily in regard to organising training or exchange of experience (Spain, Belgium, the Netherlands). In some legal systems the country itself (for example Norway) or the penal authorities (police, prosecution, courts) organised a service for support to victims at the national level (Luxemburg, Portugal). In a number of countries such services still do not exist. National organisations for providing help to victims exist for instance in Austria, Belgium, the Netherlands, England, Wales, France, Germany, Ireland, Sweden, etc. This does not mean they cover the entire territory of a country. Belgium, for example, has its entire territory successfully covered by organisations providing help to victims and witnesses, while Portugal still lacks such centres in the south. Certain countries have also developed organisations which provide specialised help to different victim groups. In England and Wales, for instance, special services exist for providing help to victims/witnesses and victims of traffic accidents, while Ireland and the Netherlands have special services for providing help to victims-tourists. Services considered to be particularly well developed in helping victims, are those with a pro-active approach to victims. These services make direct contact with the victims, inquire about their needs and whether they need practical, psychological or legal help. With such an approach, cooperation between organisations for helping victims and the police or the state attorney’s office is significant, and with the approval of the victim they provide organisations for helping victims with the victims’ names, addresses, telephone numbers. Such services exist in England and Wales as well as in the Netherlands. In countries where support to victims is truly developed, the services which provide help to victims and witnesses also participate in creating legislation and policies for victims and witnesses.68

4.1.4. Support and services providing support to victims/witnesses in the Republic of Croatia With a view to providing protection and help to threatened witnesses and those people close to them, those exposed to a serious threat to their life, health, physical integrity, freedom or property on a larger scale, due to their providing testimonies in criminal proceedings for a certain group of criminal offences69, a Protection Unit, within the Police Directorate of the Ministry of the Interior, has been established as a separate organisational unit. Its mandate is very limited and is restricted to implementing and organizing a protection programme70, emergency measures and all other tasks related to the protection of threatened individuals.71 This Unit is not responsible for providing psychological or legal counselling, providing information or other forms of help to victims/witnesses. Recently, within a project conducted in cooperation with the Embassy of Great Britain, a group for providing help to witnesses in the court of Vukovar has been established. A number of women’s organisations (for example: B.a.B.e, Autonomous House and others) provide information and different types of help and counselling to women who are victims of domestic or sex-related violence. In the RoC there is no organised and systematic help for victims/witnesses. Certain attempts have been made, as has been demonstrated, but are obviously in their early stages. Certainly, some help is provided to victims of criminal offences by health institutions and social services.

68 The source of the facts presented in this comparative analysis have is the publication Brienen Hoegen, supra note 58 69 Criminal offences against the Republic of Croatia, values protected by international law or organised crime for which the law prescribes jail

sentences of 5 years or more severe punishments 70 The protection programme includes measures and actions implemented and organised by the Protection Unit and the competent authority for

the jail system of the ministry in charge of judicial tasks in regards to the protection of persons involved 71 See Art. 1, 2, 3 and 12 of the Witness Protection Act, OG 163/03


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4

4.1.5. Survey results In response to the question of whether they were offered contact with one of the organisations that could provide them with practical and/or psychological help, only seven witnesses-respondents (5.4%) answered “yes” and 123 (94.6%) answered “no”. See Image 4. They were offered this information by a friend or a medical doctor, or they did not specify who provided the contact. This leads to the conclusion that amongst the employees coming into contact with victims/witnesses there is absolutely no awareness of the needs of victims/witnesses for different forms of help, nor do they have information regarding to whom the victims/witnesses should be referred to in such situations.

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Image 4. Have the witnesses been offered contact with organisations providing psychological or practical help to victims/witnesses in criminal proceedings

Yes 5,4 %

No 94,6 %

In the survey of judges, 81.8% of them noticed that the witness was feeling threatened, most often on their own (48.9%) or in combination with a warning from someone else (see Image 33) and this mostly whilst testifying (81.8%), which may lead to the conclusion that witnesses did not have a chance to express their anxiety, discomfort or needs to someone before testifying. When they notice the psychological feeling of being threatened, the judges try to resolve it most frequently by conversation, explanation, or motivation. In these situations, a small number of judges request the help of a professional at court, or outside of court, to provide help to the witness. See Image 35. Only 10.1% of the witnesses-respondents (13 of them) were in contact with one of the services or organisations providing psychological and/or practical support to victims/witnesses in criminal proceedings. The services or organisations they were in contact with included a psychiatrist, nuns, social welfare system. Notably, 69% of the respondents who had not had this contact consider that they would certainly have benefited from it. See Image 5.

Yes, and it was useful 8,5 %

No, although it would be useful 69,0 %

Yes, but it was not useful 1,6 %

No, and it would not be useful 20,9 %

It is obvious that victims/witnesses show a significant need for contact with an organisation or a person who could provide different forms of help prior to, during and after the trial. However, on the other hand 68,2% of the judges have stated that they have no information about organisations and professionals in the territory of their court’s jurisdiction to whom to refer to for help regarding the provision of witness support. See Image 36. This indicates that such organisations/services do not exist and/or that judges do not have information about which institutions, within the scope of their operations, provide such services.

Image 5. Have the witnesses had contact with a service or organisation providing psychological and/or practical support to victims/witnesses in criminal proceedings?


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48 Image 6. Opinions of witnesses about which services the organisations/ services providing support to victims/ witnesses should be providing

Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

Most of the witnesses-respondents are of the opinion that services/organisations providing help to victims/witnesses should provide psychological and emotional help (68.2%), render legal advice (71.3%) and inform witnesses about the rights and services at their disposal (49.6%). See Image 6. One respondent commented that such services would contribute to better communication and would reduce the length of proceedings. 81.8% of the judges surveyed consider that the preparation of a witness for testimony is necessary, without discussing the testimony contents. See Image 37.

Providing legal advice

71,3%

Providing psychological and emotional help and support

68,2%

Informing witnesses/victims about the rights and services at their disposal

49,6%

Providing protection

39,5%

Providing material help

20,2%

Representation in court

19,4%

Providing shelter

14,0%

Concern for health Something else

12,4% 0,8%

Two-thirds of judges (70%) consider that witness support should be provided by a special service at court, and only 2.7% of judges-respondents consider that support to victims/witnesses is unnecessary. See Image 38. According to the survey, in the opinion of victims and/or witnesses, the largest demand for the services rendered by organisations/services for providing support to victims/witnesses exists when the event occurs (86.9%), thereafter it decreases, so that 37.7% of respondents consider that they would use these services during the trial, and only 10% consider them necessary after testifying or once the verdict has been reached. See Image 7. This shows how important it is to provide support to victims/witnesses immediately, and not wait for the trail.

Image 7. Opinion of witnesses – When is the best time to use the services provided by organisations/services for witness support

86,9%

Immediately after the event, prior to questioning in court

During the trial

37,7%

Following the testimony

10,0%

After rendering the verdict

10,0%

The survey has indicated that organised support for victims/witnesses is practically non-existent, and that there is a large demand for services/organisations providing these services. A significant number of victims/witnesses (77.5% of them) consider that contact with an organisation providing help to victims/witnesses would be useful. Only 2.7% of the judges participating in the poll consider that there is no need for information regarding organisations/ services providing support to victims/witnesses. The greatest need is for psychological help72 and legal advice.

72 Even so, 30.9% of the judges stated they were not informed about ways of reducing the witness’s psychological feeling of being threatened, and

54% consider to have been only partially informed about it.


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

Obtaining information about the rights of victims/witnesses is exceptionally important. There is also a significant need for shelters. Financial help and health care are of less importance. The highest percentage of victims/witnesses responded that help is specifically needed immediately after the event. This leads to the conclusion that it is very important to educate the police, and that the creation of professional services at courts in itself (which 70% of the judges are in favour of ) will not fulfil the needs of a large number of victims/witnesses, as they need help immediately after the event.

4.1.6. Recommendations 1. It is necessary to establish a system (public or private, preferably mixed) for providing help to victims/witnesses of criminal offences. Since an actual movement within the civil society to provide support to victims/witnesses still does not exist in Croatia, in our opinion, the initiative to set up such services and organisations should come from the state, primarily from the Ministry of the Interior and the Ministry of Justice. 2. A unit responsible for providing support to victims and witnesses should be created as a separate interdepartmental organisational unit, coordinating actions between the Ministry of the Interior, the Ministry of Justice and the Ministry of Families. It would serve as a central coordination authority for organising a system providing support to victims/witnesses and, at the national level, it would be in charge of the strategy and policies for providing help to victims/witnesses. Its task would be to organise the establishment of a system providing support to victims/witnesses, including a process of referral to services/organisations providing help to victims/witnesses, in order for them to obtain detailed information (a system of referring victims/witnesses where their consent is implied has shown to be the most efficient system – unless it involves criminal offences of sexual or domestic violence or murder, when explicit consent is needed). Consideration should be given to whether or not the Unit for Providing Support to Witnesses and Participants in war crimes related proceedings, established within the Ministry of Justice, could assume this role. 3. A preliminary recommendation is to have the service providing help to victims/witnesses operate on three levels: a) local level – operational level (identifying the needs of victims/witnesses, referring them to adequate services/organisations for providing specific forms of help to victims/witnesses, coordinating different organisations/services providing help to victims/witnesses in order for them to receive the most complete and high quality service possible, supervising the quality of the services provided and providing information in a specific case when necessary; b) regional level – coordination level (providing training for those working with victims/witnesses, developing educational material and information packages for victims/witnesses, coordinating the work of services providing help to victims/witnesses on the regional level); and c) national level (unit for providing support to victims and witnesses) – strategic level (managing the entire service, developing the strategy for providing support to victims and witnesses, raising awareness of the needs of victims/witnesses, conducting research, coordinating the activities of different authorities on the national level in this field). 4. The needs of victims and/or witnesses are diverse (the need for physical protection and safety, for information during the entire criminal proceedings and afterwards, for emotional and psychological counselling and help, for respectful and dignified treatment, for preventing discomfort and ensuring a pleasant stay at court, for help in cases of disability, speech problems, not speaking the language, etc.), which is why the services must be diverse and at the disposal of victims/witnesses immediately after the event when their need is the greatest. By taking the above into consideration we particularly want to emphasize that in their work those services/ organisations/individuals providing help to victims/witnesses must rely on the cooperation of a whole range of organisations and services: a. foreign experience shows that non-governmental organisations (NGOs) are the most suitable for providing different types of help to victims and witnesses – and the state should take steps to encourage their operation, so that some of them focus their work on this field; b. special services need to be established or individuals appointed at courts in order to provide help to victims/witnesses during the trial itself, or have the NGOs do this, in which case the appointed individuals at courts should have the coordinating role in cooperation with NGOs – this is only one segment in the entire organisational system of providing help to victims/witnesses; c. it is crucial to work on establishing a network of organisations which would provide psychological help to victims/witnesses (most respondents indicated the need for precisely this type of help).

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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

5. A feasibility study must be conducted to determine the most suitable system to provide support to victims/ witnesses, by taking into consideration the present financial means and services already in place. Workshops with different stakeholders must be conducted within this research. 6. Once the system has been designed, a pilot project must be conducted to see how it functions in practice.

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7. Police education is significant as well, followed by the education of the state attorney, attorneys and judges as regards the needs of victims/witnesses for support, and the possibilities existing at present.

4.2. The right of victims/witnesses to information 4.2.1. The right to information in international documents A whole range of international documents establish the right of victims, and to a lesser degree of other witnesses, to access, i.e. obtain information relating to their case and necessary for them to protect their interests and exercise their rights. Information must be provided to a victim/witness as soon as he/she has been contacted by the penal institutions, health services or social welfare services, either orally or in writing in the language that the victim/ witness understands. All victims must be informed about the services and organisations providing help to victims, the type and price of such help and the possibility of receiving compensation for damages by the state, if such a possibility exists. Provided the case has been reported to the penal authorities, the victim/witness must be informed of: the penal proceedings in question and the role of the victim/witness in it, when and under what conditions the victim/witness may obtain protection, when and under which conditions the victim may obtain compensation for damages from the perpetrator, on availability and where relevant the cost of legal advice or help; and victims/ witnesses residing in another country must be informed about the options that exist for the protection of their rights and interests. The state must, in an appropriate manner, ensure that information is provided to the victim about the time frame of certain procedural actions and the decisions reached, particularly in relation to those submissions pertaining to the victims themselves. The victims themselves must also be informed about the results of the relevant stages of the criminal proceedings and the progress of the case in question, as well as about the verdict and sanction. The decision of a victim/witness to not receive this information at his/her own discretion must be respected.73 The entire penal system benefits from providing information to victims and witnesses. Research indicates that victims/witnesses informed about the progress of their case are more willing to cooperate with the prosecutor, they are more inclined to evaluate the entire process as equitable, and feel that the authorities have treated them with the necessary respect and dignity.74

4.2.2. The victims’ right to information before the International Criminal Court (ICC) ICC victims have a limited right to be informed of the progress of criminal proceedings.75 For instance the Victims’ Participation and Reparation Unit - VPRU - established within the Registry has an obligation to inform the victims76 about not initiating an investigation or closing an investigation, about the prosecution’s decision to not initiate criminal charges due to a lack of evidence77, and on holding a hearing in order to substantiate the indictment.78 This is an important mechanism which controls the discretional authority of the prosecution, since the victims may object to the prosecution’s decision. In order for them to function efficiently in such cases, it is necessary for the prosecutor to explain his decision, strategy and criteria on the basis of which he/she has reached this decision.

73 Art. 6.(a) of the UN Declaration on Justice for Victims; Art. 6 Rec (2006) 8; Art. X Rec. (2002) 5; Art. 4, 8, 13 of the Recommendation R No. (87) 21; Art. 2, 3, 6, 9 of the Recommendation R No. (85) 11 74 The Handbook on Justice for Victims on the Use and Application of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse

of Power, p. 43, U.N. Doc. E/CN.15/1998/1, available at http://www.victimology.nl/onlpub/hb/hbook.html 75 The rules adopted by ICTY and ICTR have not regulated these issues. 76 The court has the obligation to provide information to those victims who have participated in the proceedings or those who have communicated

with the Court in regard to an actual case, when a verdict was reached in this particular case. In addition, it would be helpful for ICC Rules to prescribe the option for victims to not receive this information. This provision exists for instance in Art. 4 (4) of the Council Framework Decision of 25 March 2001 on the Standing of Victims in Criminal Proceedings, Official Journal L 082, 22/03/2001 p. 0001-0004, available at http://europa.eu.int 77 Art. 15 (6) of the ICC Statute and Rule 92 (2) of the ICC Rules. 78 Rule 92 (3) of the ICC Rules.


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

Once criminal proceedings have been initiated this Unit must inform the victims involved in the proceedings79 about the course of these proceedings in court (the hearing dates, rescheduling, decision-reaching dates), requests, submissions and documents related to these requests and submissions, as well as about decisions reached in those stages of the procedure in which the victim had participated.80 Information is provided in writing, except in cases when this is not possible, for which the Registry keeps records.81 Moreover, the Victims and Witness Unit must inform the victim about his/her rights, relevant Court decisions and the services the Unit provides to victims.82 Provision of this information is necessary in order to enable the best possible participation of victims in criminal proceedings, so that they can exercise their right to reparation.

4.2.3. Comparative experiences There are many different systems of providing information to victims/witnesses regarding their rights, obligations and the progress of the case. Some legal systems do not impose a formal legal obligation to inform the victim/ witness83, others impose a limited obligation, e.g. information regarding the right to compensation84, others still prescribe the obligation to inform the victim/witness, but do not indicate whose responsibility this is85, while others prescribe in detail the obligation of providing information.86 Some systems provide very limited information (on the right to an attorney or to compensation), most often orally, sometimes by way of very simple brochures, in other systems very detailed explanations are provided to victims, yet other systems rely on brochures and leaflets to a large extent, particularly for the protection of vulnerable groups of victims (women, children, people with mental problems). Where services/organisations for providing help to victims/witnesses of criminal offences exist, there is close cooperation between the penal authorities and these services/organisations. Penal authorities refer victims/witnesses to these services/organisations in order for them to obtain detailed information, frequently with the consent of the victim/witness (the victim is asked whether their name, address and telephone number may be forwarded to the local service/organisation for providing help to victims/witnesses), or upon an implied consent (data is forwarded unless the victim opposes it)87, and some are referred automatically, in which cases it is essential to make sure no violation of the rights of the victims/witnesses occurs. In systems with explicit consent fewer victims/witnesses contact services/organisations for providing help to victims/witnesses for help and information, than in systems with implicit consent. Special attention needs to be given to the following areas: how the police provide information (since they are the first ones to contact victims, and frequently witnesses, in order to obtain information pertaining to the investigation); information on the issuance of an indictment; when and where the main hearing will be held; and the verdict. The best systems are those where the police have a statutory obligation to provide general information to the victim, where they have a prepared list of points to discuss with the victim and must prepare a statement/report.88 Computer programmes design these reports in such a way that they cannot be finalised without the completion of the sections reporting on the provision of information to victims/witnesses. This is crucial since the police are the ones who initially contact the victim. The police are the ones referring a victim/witness to certain services/ organisations providing help to victims/witnesses. The preparation of a directory listing such services/organisations, a brief description of their activities, their address and telephone number has been shown to work well.89 Comparative experiences indicate that it is essential to define the type of information the police must provide to the victim, because once this is left to the discretion of the provider, there is always the tendency, depending on the

79 Participation of victims in the procedure has been prescribed by Rule 89-91 of the ICC Rules. 80 Id., Rule 92 (5) and (6) 81 Id., Rule 92 (7) 82 Id., Rule 16 (2) 83 For instance France, Greece, Italy, Turkey. Facts extracted from the book Brienen, Hoegen, p. 995-1056, supra note 58 84 For instance Austria (the police must provide information about the possibility to raise a private claim), Iceland (the police must provide information

about the right to compensation for damages), Portugal and Zurich, Switzerland. Id. 85 In Germany for instance, the obligation of informing the victim has been prescribed, however no indication has been made as to who should do it

– and this obligation primarily binds the state attorney and the court. Id. 86 In Belgium for instance, in addition to regulations, laws contain general information about informing victims/witnesses Id. 87 This system exists in England and Wales for instance, while referrals of victims of sex-related crimes, domestic violence and murder require the

explicit consent of a victim. Id. 88 Belgium and the Netherlands are a good example in this respect. 89 This includes health services, social welfare, legal services, the bar association, psychological help and counselling services, organisations involved

in helping domestic violence victims, sex-related victims, shelters, child protection services etc.

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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

awareness level of the provider in question, to not provide or to provide limited information. In order to contribute to the provision of high quality information, computerised plans for providing information have been designed, which are different for various criminal offences90, also diagrams which help explain the way in which the penal system functions – with special emphasis on those stages where decisions important for the victim are reached and in which the victim may initiate certain actions to protect his/her rights and interests.91 Training is organised to ensure the police are as efficient as possible in this, and at these training courses they learn about the rights of victims/witnesses and the manner in which they should be treated. Some legal systems have introduced victims’ advocates who, in serious criminal offences, cooperate with the victim, accompany him/her to court and interpreting the different aspects of the criminal proceedings to him/her. In Scandinavian countries, for instance, a victim’s advocate is always appointed in cases of sex-related criminal offences. In England and Wales, Ireland, the Netherlands, Portugal and Spain this role is assumed by a person employed in the service for helping victims and witnesses.92 In all legal systems93 the victim is entitled to contact the judicial authorities and obtain information about the course of proceedings. Moreover, all legal systems provide information to victims participating in criminal proceedings, primarily in the summons requesting them to act as witnesses. The summonses usually arrive late and do not give the victim enough time to prepare for the proceedings, nor do they provide detailed information about the case in question. In numerous legal systems victims who have reported a criminal offence obtain a copy of the charges, and in England and Wales and Ireland the police officer always provides the victim with his business card so that the victim may later contact him and obtain information about the case. Victims have the right to review the case file (Austria, Belgium, Germany) unless this jeopardises the on-going investigation. All systems have introduced the obligation of informing the victim about the discontinuation of proceedings. However, a few systems prescribe the obligation of providing information on issuing the indictment. This is mostly provided to certain types of victims, like those of sex-related violence. Some systems prescribe the obligation of informing the victim about the investigation results, if the victim has expressed his/her wish to receive such information (the opt-in system) 94. In all legal systems the victim, who is also a witness, is provided with information regarding when and where the main hearing will be held. In France and Ireland all victims are provided with this information, while in Belgium, England and Wales, the Netherlands and Zurich (Switzerland) only those victims who have requested this will be informed, in addition to those victims who are witnesses (the opt-in system). According to international documents all legal systems should ensure that the victim is briefed on how the verdict may be reached and given access to reviewing the verdict. However, many legal systems have gone beyond that. Some have a partial verdict information system which is only available to those victims who have actively participated in criminal proceedings. Other victims must themselves undertake the necessary actions to gain access to the verdict. For example, Spain and Zurich (Switzerland) have created a verdict information system not only for victims who have taken an active role in criminal proceedings, but for all victims of sex-related violence and violent criminal offences. In England, Germany and the Netherlands information on the verdict is provided to all victims (a copy of the verdict or a part of the verdict referring to the victim, or a letter explaining the verdict) who have expressed their wish to receive such information (the opt-in system) . In all these systems the problems which occur in relation to the provision of information, mainly arise due to insufficiently comprehensive information, problems in the distribution of brochures and leaflets, and the procedure of referring victims to services/organisations providing help to victims.

4.2.4. The victims’ right to information on criminal proceedings in the Republic of Croatia Whether or not a victim obtains information depends on his/her role in criminal proceedings. The penal judiciary’s presumption is that only those victims who actively participate in criminal proceedings actually need information. It is felt that victims who do not participate in the proceedings do not enjoy special rights or obligations.

90 The Netherlands and Sweden are a good example of this. 91 The Dutch police use such diagrams. 92 See Brienen, Hoegen, p. 995-1056, supra note 58 93 All of this refers to 22 EU Members States whose systems have been analysed in the book Brienen, Hoegen, id. 94 For instance in Belgium, England, the Netherlands, Germany


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4

Since there are no special services in the RoC providing help to victims/witnesses of criminal offences95, victims are not and cannot be provided with specific information on victim support services (small improvements are noticeable in the field of criminal offences related to domestic violence where a brief handbook has been published with a directory of organisations the victims may turn to for help). The possibility of compensation for damages by the state does not exist in Croatia, therefore no information regarding this can be provided to the victim. However a victim participating in criminal proceedings either as a private or a subsidiary prosecutor is provided with information on the right to submit a motion for filing a property lawsuit in criminal proceedings (Art. 135, para. 4 of the CPA), and he/she is informed of the possibility of raising a property claim in a civil lawsuit (Art. 138, para. 2 of the CPA). Once the state attorney determines that there are no grounds for the prosecution of a criminal offence, prosecuted ex officio or based on a motion, or determines that no grounds exist for prosecution against one of the participants accused, he shall inform the injured party (victim) that he/she may prosecute on his/her own (Art. 55, para. 1 of the CPA). He/she will provide the injured party (victim) with information on the legal actions that will need to be initiated in order to fulfil this right (Art. 55, para. 6 of the CPA). The state attorney, however, has no obligation to inform the injured party of the decision to prosecute. The investigating judge has an obligation to inform the injured party in an adequate manner about when and where an investigation will be conducted and at which the injured party may be present, except when there is the threat of postponement (Art. 211, para. 5 of the CPA). The private prosecutor or injured party, when assuming the role of prosecutor, is personally handed the summons for the main hearing and other summons and decisions. There is a time limit for filing an appeal which commences from the date of delivery of the summons and the opposed party’s appeal, which is delivered for response purposes (Art. 157, para. 1 of the CPA). A witness is summoned by delivery of a summons in writing, indicating the first and last name, occupation of the person summoned, the time and place at which they should arrive, the criminal case in relation to which the summons has been delivered, an indication that he/she has been summoned as a witness and a warning about unexcused absence. Summoning a witness who is a minor, and who is not yet sixteen years old is done through the minor’s parents or legal guardians, unless this is impossible due to the need for emergency action or other circumstances (Art. 247, para. 1 and 2). Unless a victim has the role of a witness or a prosecutor he/she will not be informed about the date and time of the hearing. In short, penal authorities have no obligation to inform the victim/witness about the course of the penal procedure in general, or their role in it, unless the victim (injured party) has the role of a private prosecutor or a subsidiary prosecutor. The victim, moreover, has no right to receive information about the investigation results unless the state attorney decides to refrain from further criminal prosecution. The victim is briefed about the time and place of the main hearing only if he/she participates in the procedure as a witness, a private or a subsidiary prosecutor; likewise the victim is provided with information on the outcome of the case only if he/she has assumed the role of a private or a subsidiary prosecutor. In addition to this there is no legal obligation to provide an injured party, who has assumed the role of a private or a subsidiary prosecutor, with information on their right to an attorney or their right to an attorney free of charge if they are unable to pay for representation expenses. No obligation has yet been prescribed for informing those victims/witnesses who may qualify as threatened witnesses, about the possibilities of protection available to them. Furthermore, there is no legal obligation for informing the witness or injured party who has assumed the role of a prosecutor about receiving payment for expenses incurred. Information is mainly provided to victims/witnesses by the state attorney or the judge. The police have no obligation to provide information to victims/witnesses, on one hand because the police cannot make decisions in relation to the criminal offence reported, and must forward each criminal offence case to the state attorney, and on the other hand because they do not have enough facts on the subject – they are not adequately informed about criminal proceedings.

4.2.5. Survey results regarding the right to information When asked for their opinion about which rights a victim should have in criminal proceedings, most respondents stressed the importance of the right to obtain information about their overall rights (83.8%) and the right to obtain information about the course of the proceedings (62.3%). The results show that victims/witnesses consider their rights to information as exceptionally important – which is not surprising because they cannot exercise their other rights without information.

95 For the time being victims of criminal offences obtain support from different women’s organisations, mostly consisting of help provided to sexual violence victims or domestic violence victims or from social welfare services. An organisation for helping victims in the Vukovar area has recently begun its operations. A special service exists for providing protection to threatened witnesses.

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Image 8. Have the witnesses obtained information about the testifying procedure

Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

According to the survey conducted among victims/witnesses, 69% stated that they did not receive any information regarding the proceedings, and only 11.6% felt they had received sufficient information (from a total of 129 respondents). See Image 8. It is interesting to note that of the 8 war crimes victims/witnesses interviewed, none had received information on their rights or the process of testimony. It seems that smaller courts provide less information than larger courts irrespective of the type of witness appearing in court (victims, eyewitnesses or other witnesses). The main objection victims/witnesses have towards the way in which judges carry out their work is that the witnesses receive no explanation, prior to the trial, on what will happen in the courtroom and who will be present (17.7%), i.e. the judges do not inform the victim/witness about their rights (7.3%). See Image 18.

Yes, sufficient information 11,6 % Partially, but more is needed 19,4 %

No, I did not receive any information 69,0 %

The information obtained (48,78% entirely and 39,02% partially of the respondents who received information) corresponded to what the victim/witness actually experienced in the courtroom. See Image 9. There is still room for improving the quality of the information provided – the type of information provided to victims/witnesses must be determined in detail. We should emphasize that the information provided in the smaller courts statistically corresponded more to the respondent’s actual experience. Information was predominantly obtained from judges and then from attorneys. Only three witnesses obtained information from the police, and none from the state attorney. Partial information was also obtained from friends.

It corresponded entirely 31,0 %

I did not receive any information 36,4 %

Image 9. How much the information witnesses obtained regarding the testifying procedure corresponded to their experience

It did not correspond at all 2,3 %

It partially corresponded 24,8 % For the most part it did not correspond 5,4 %

About three quarters of the witnesses-respondents received information about when they should arrive at court (78.5%)96, on their right to receive compensation for expenses (17.7%)97 and about their role in court (16.2%). Other information such as what to bring, how to reach the court, whether they could bring someone they trusted with them, how long the court proceedings would take, were provided in a insignificant number of cases. Most of the witnesses only obtained information about when they should be at court. It is particularly interesting to note that only 17.7% of the witnesses received information regarding their right for compensation of expenses, information which judges are under obligation to provide. See Image 10.

96 76% of respondents waited for their testimony for less than an hour. The summons relatively well estimate the time of arrival to court, however there is area for improvement. 97 Even so 70.5% of the witnesses did not receive reimbursement of expenses which seems to be directly linked to their not having received any

information about the right to reimbursement of expenses.


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

The time of arrival to court

78,5%

The right to reimbursement of expenses (travel, stay, food, lost income...)

17,7%

What my role as a witness is in court

9,2%

What to bring along

8,5%

That I may bring a trustworthy person along for support The duration of my stay

4,6% 3,1% 2,3%

I did not receive any information Other

55

16,2%

What would happen in the courtroom – course of the proceedings

How to get to the court

4

Image 10. Which information did witnesses obtain in relation to their testimonies

22,3% 0,0%

Witnesses-respondents were of the opinion that it would be particularly useful to provide witnesses with information about when to arrive at court (59.7%), about their role in court (55.8%), about the course of proceedings (51.2%), about the right to compensation for expenses (44.2%), and the right to bring someone they trusted with them to court for support (40.3%). It was less important for them to be informed about how to reach the court, what to do once they were there, what to bring, which services exist at the court or the time it takes to testify. See Image 11. 33.6% of the respondents would have taken the opportunity to tour the court and the courtroom prior to testifying, had this possibility been offered to them.

59,7%

The time of arrival to court

55,8%

What my role as a witness is in court

51,2%

What would happen in the courtroom – course of the proceedings 44,2%

The right to reimbursement of expenses (travel, stay, food, lost income...) That I may bring a trustworthy person along for support

40,3%

What to bring along

36,4%

The time needed for testifying

35,7%

What to do upon arrival to court

34,9%

How to get to the court

26,4%

About services and conditions for stay which exist at the court Other

24,2% 0,0%

When asked about the type of information they would wish to receive if they were victims of a criminal offence, 66.2% of respondents stated that it was extremely important to receive information regarding how and under which conditions they could obtain protection when they felt threatened, 65.4% wished to receive information on the type of service or organisation to which they could turn for help, 60% wanted information regarding when the perpetrator would be imprisoned, and 58.5% required information on significant developments in the proceedings (whether the indictment was issued, the custody ordered, the verdict reached, etc. It is interesting that, apart from providing information on the expected time of arrival at court and providing information to a victim actively participating in the proceedings about the developments in the proceedings, no legal obligation exists that requires the provision of any of the information for which, according to the survey, there is the largest demand. For war crime victims, the largest source of discomfort was caused by the fact that they were unprepared for the circumstances of judicial proceedings. For most of them this was the first time in their life that they had appeared in a courtroom, and they felt exceptionally exposed, confused, insecure and afraid of this unknown situation. A quarter of the witnesses did not understand the roles played by the different participants in the proceedings. Some

Image 11. Opinions of witnesses about what information would be useful for a witness to obtain in relation to their testifying


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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

of them did not understand their own role. They were particularly bothered about not having been prepared for the interrogation by the defense – specifically, that no one had prepared them for the particularly uncomfortable and threatening experiences they encountered.98

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The judges interviewed were of the opinion that victims/witnesses must be provided with a wide spectrum of information - listed here by order of importance: how and under which conditions victims/witnesses can obtain protection when feeling threatened (77.1%), the type and form of service to which they can turn for emotional and practical support (74.3%), what happens after indictment and what this means in criminal proceedings (67.9%), information about the judgment (64.2%), the type of support they can expect to receive (64.2%), how and under what conditions they are eligible for legal help (60.6%), the course of proceedings (56%), under what conditions they can file for compensation for damages (56.9%), and when the perpetrator will be released from prison (54.1%). It is interesting that only 56.9% of the judges think that victims should be provided with information about the option to file for compensation for damages. See Image 12

100 % 90 % 80 %

77,1% 74,3%

70 %

67,9% 64,2%

60 %

62,4%

60,6%

56,9%

56% 54,1%

50 % 40 %

49,5% 34,9%

30 %

Image 12. Opinions of judges about the type of information a victim (injured party) should receive 99

20 % 10 % 0% 1

2

3

4

5

6

7

8

9

10

11

4.2.6. Recommendations 1. Regulations should be adopted100 regarding the obligation of informing victims/witnesses of their rights,101 of the stages of the criminal proceeding and of the role of the victim/witness in the criminal proceedings. Comparative experiences indicate that informal guides and instructions in this respect are inadequate. 2. A system which provides information to criminal offence victims/witnesses must be developed: who, when, and what type of information should be provided to a victim. A determination must be made on the different types of information that should be provided to the victim at the various stages of the proceedings. For instance, prior to the trial a victim/witness should obtain information about how to report a criminal offence,

98 See chapter 6.2 99 Key:

1. How and under which conditions he/she may receive help when feeling threatened, 2. The kind and type of service to refer to for help regarding emotional and practical support, 3. What follows indictment and its role in the proceedings, 4. Information about the judgment, 5. Type of support he/she may obtain, 6. How and under which conditions he/she is entitled to legal help, 7. How, under which conditions and from whom they may request compensation of damages, 8. What the course of proceedings is, 9. When the perpetrator will be released from prison, 10. When was the perpetrator put in jail, 11. How and under which conditions he/she is entitled to access other forms of counselling and help. 100 Special provisions within the Police Act, the State Attorney’s Office Act, the CPA, a special charter on the rights of criminal offence victims, a

protocol on the treatment of victims and witnesses. 101 The right to compensation of damages, the right to an attorney and free legal help when they are unable to finance it, on the right to file or

assume a lawsuit, information on the stages of the proceeding, on the services for providing help to victims and witnesses, on the rights to protection of physical integrity and privacy, on the right to psychological counselling, etc.


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

the services available for providing support to victims/witnesses, the various rights of victims/witnesses, the penal system and the way it functions, the progress of the case in question, the victim’s right to compensation for damages, clear information about the role he/she will have during the proceedings, and information pertaining to the possibility of visiting the court to provide some familiarity and hence, comfort, to the victim/ witness during the main hearing. On the actual day of the hearing the victim/witness should be given details regarding the court itself, ie where things are located, on what will transpire that day, on the course of the proceedings ,on his/her role, and about the length of time the proceedings will last. Information should also be given on how long the victim/witness can expect to wait before they testify and about their right to receive compensation for expenses. Once the trial is over the victim/witness must be informed about the judgment, the sanction ordered, where the perpetrator is located and when he will be released from prison. Usually this type of information is provided to the victim only and not to other witnesses. 3. Information brochures containing all the relevant information must be written in a simple language and widely accessible. Special brochures should be adapted to meet the needs of children and individuals with learning disabilities. 4. A telephone line must be established for victims/witnesses through which information can be obtained 24 hours, 7 days a week. 5. The awareness and knowledge of all those coming into contact with victims/witnesses must be raised, specifically regarding their rights and the need to provide them with information. In this sense, regular training for police, state attorneys, attorneys and judges must be organised, as well as for government employees and members of non-governmental organisations coming into contact with victims/witnesses of criminal offences.102 6. A system must be designed which responsibly provides information to victims/witnesses within the penal system. The provision of information should not rely on the personal will of an individual official. It is necessary to develop a victim-friendly environment within the penal system. 7. Special budgetary funds must be secured in order to provide information to victims/witnesses: to prepare and publish brochures and leaflets, to pay specialists providing information to victims/witnesses, to finance services/organisations that engage in providing help and necessary information to victims/witnesses. It would be helpful to link all the services (health care, social welfare, police, the judiciary and NGOs) that come into contact with victims/witnesses to enable the correct referral of victims/witnesses to the relevant sources providing information. 8. A system which ensures that the victims are adequately informed about the results of the investigation and whether or not an indictment has been issued must be designed, not only when the decision is negative, but also when it is positive. In order to protect the rights of victims it is exceptionally important to inform them when negative decisions are taken so that the victim can prosecute on his/her own. However providing this information alone is not enough to protect his/her right to receive compensation for damages or to ensure the victim is adequately prepared to participate in criminal proceedings, particularly at the stage when it becomes contentious. It is recommended that whomever takes these decisions should explain this decision to the victim in order to ensure the victim understands the reasons for the decision.103 This explanation can be written as a standard letter, though in layman’s terms and not using abstract legal language, and which must include a legal solution detailing the victim’s rights and how these rights can be exercised in criminal proceedings. In cases of serious criminal offences, victims should be provided with this information in person. 9. All victims reporting a criminal offence, regardless of whether they play an active role in criminal proceedings (as witnesses or as prosecutors) or not, should receive information about the date and time of the main hearing so that they may file a property claim. This information should be sent in due time for the victim to prepare. According to the survey results the average time for receiving the notice was 17 days prior to the date of the main hearing.104 Victims/witnesses should also be informed about their testimony’s anticipated duration. 10. The categories of victims who currently receive information on the verdict should be expanded beyond those who actively participate in the proceedings as private or subsidiary prosecutors. Judgments should be delivered to all victims who have demonstrated an interest in this (the opt-in system) and to the victims of sexrelated criminal offences and violent criminal offences.

102 The police or other judicial officers are often unaware of the rights of a victim/witness and must be educated in this respect. Moreover, the attitude

of individuals employed in penal institutions needs to change, as their task is not only to discover and prosecute crimes, but also to help victims and witnesses. At times they refrain from providing such support being of the opinion that no one is a victim until a final judgment has been reached in this respect or that information for a victim who does not have an active role in criminal proceedings should not be provided. 103 This is how it works in Iceland. England and Greece are considering introducing this system. 104 The range of answers was from a minimum of 3 to a maximum of 60 days.

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4.3. The right of victims/witnesses to be treated with respect and dignity

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4.3.1. The guarantee of a victim’s/witness’s right to respect and dignity in international documents Victims and witnesses must be treated with respect and dignity at every stage of a criminal proceeding. 105 This refers in particular to how many times victims/witnesses are questioned during the process and the manner in which victims and witnesses are questioned in general, where special attention must be paid when questioning vulnerable groups of victims/witnesses – children, individuals with mental disabilities and victims of sex-related violence and domestic violence. Children and people with mental disabilities should always be questioned in the presence of parents or legal guardians (unless there is a conflict of interest) or in the presence of an adult selected by the child (with the court’s authority to deny this right to a certain person, together with an explanation).106 Vulnerable witnesses should be questioned immediately after the event has been reported, whenever possible, and without delay, possibly at a location specially adapted to facilitate the creation of a confidential relationship between the interrogator and the victim/witness.107 Women who are victims of violence must have the right to be questioned by a woman if they so require, thus the number of women employed in the police force and the state attorney’s office must be increased.108 These victims should be questioned carefully and respectfully, by specially trained personnel. Steps should also be taken to ensure that victims are not exposed to secondary victimisation109 during questioning nor receive sexually insensitive treatment by health professionals, judicial officials or other officials in contact with them.110 Repeated questioning must be avoided with particularly vulnerable categories of victims/witnesses, in order to decrease the traumatic effect of the criminal proceedings.111 This is why court and defense representatives should be present during questioning in the investigation process, so that the defense can ask the victim/witness questions112 and, where appropriate, this questioning should be audio-visually recorded in order to avoid the same questions being asked again at a later date.113 Procedural rules must prohibit the unnecessary and humiliating questioning of victims or witnesses of violence, due to the trauma they have suffered and in order to prevent their further traumatization.114 It is up to the judge to control the way in which questioning and cross-examination are conducted in order to prevent infringements of the dignity of victims/witnesses.115 In order to guarantee that officials of judicial authorities, the police, state attorney’s offices and the court, as well as attorneys, know how to properly approach the victim and question him/her, it is necessary to organise training courses on the methods of questioning victims and avoiding secondary victimisation, not only for young people new to the profession, but also for those who have been working in it for a longer period of time.116

105 See Art. 4 of the UN Declaration on Justice for Victims; Art. IX of the Guidelines on the Protection of Victims of Terrorist Acts specially emphasises

the need to respect the dignity of victims of terrorist acts; see also Art. 2, para. 1 of the EU Framework Decision on the Standing of Victims in Criminal Proceedings. 106 Art. 46 of the Recommendation Rec (2002) 5; Art. 8 of the Recommendation no. R (85) 11 107 Art. 29 and 32 of the Recommendation Rec (2002) 5, Art. 25 of the Recommendation No. R (97) 13 108 Art. 30 of the Recommendation Rec (2002) 5 109 Secondary victimisation refers to victimisation which is not the direct result of a criminal act, but which is caused by the treatment and attitude of institutions and people towards the victim. Art. 1.1 of the Recommendation (Rec 2006) 8. Art. 4 of the UN Declaration on Justice for Victims emphasises the need to treat the victims in criminal proceedings with compassion and with respect for their dignity, primarily to avoid secondary victimisation. The same has been stipulated by Art. 3.3. of the Recommendation Rec (2006) 8. 110 Art. 33 of the Recommendation Rec (2002) 5 111 Art. 42 id. 112 Art. 26, Recommendation no. (97) 13 113 Art. 27, id. 114 Art. 43 of the Recommendation (2002) 5 115 Art. 28, Recommendation no. (97) 13 116 Art. A.1, Recommendation no. R (85) 11


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4.3.2. Protection of the dignity of victims/witnesses at international criminal courts In order to protect the dignity of victims/witnesses, and particularly to protect them from secondary victimisation, the ICTY Rules envisage questioning threatened victims and witnesses by using closed-circuit television (Rule 75 (B) (iii)), and mandating the judicial chamber to control the manner in which the victims/witnesses are questioned to avoid any harassment or intimidation (Rule 75 (D)). Special regulations have been introduced for cases where testimonies are given by victims of sexual assault.117 The ICC Statute stipulates special measures for providing protection from secondary victimisation, to allow or facilitate the testimonies of traumatized victims, especially children, the elderly and victims of sexual assault. Special emphasis is given to ensuring the presence of attorneys, psychologists and family members during the testimony of traumatized victims.118 Providing protection for victims from secondary victimisation is not problematic as long as the defense has the right to question the victim in some form, and as long as the protection itself does not jeopardize the possibility of establishing the truth.

4.3.3. Comparative analysis A very small number of jurisdictions have to date looked into the methods of questioning victims/witnesses who have not been classified as vulnerable witnesses. However, every jurisdiction must adhere to a whole range of regulations that positively or negatively influence the methods by which regular (non-vulnerable) victims/ witnesses are questioned. For instance, the possibility of excluding the public from hearings, programmes for help and providing information to witnesses, special waiting rooms for victims/witnesses where they do not come into contact with the defendant, all have a positive influence on the testimony of victims/witnesses. Cross-examination where the victim’s character is often questioned and the victim is perceived as only a potential victim until the defendant has been proven guilty, often has a negative influence on the method used to question a victim. Some legal systems have developed formal regulations determining the way in which all victims/witnesses are questioned, not only vulnerable groups. According to Austrian law, a witness may refuse to testify or answer a question which would damage his/her reputation or the reputation of a person close to him/her, even during the investigation process. A judge must inform the victim of his/her rights, may remove the defendant from the courtroom during the victim’s testimony, and may decide to conduct the questioning of a witness by video link. In addition to the abovementioned, German law also contains the general obligation to treat all victims/witnesses with respect and dignity, and has special regulations on which questions a victim may be asked. Special attention is given to the questioning of vulnerable victims/witnesses (children, people with mental disabilities, victims of sexual assault or domestic violence). All jurisdictions pay great attention to the methods used to question children. The police use the services of individuals specially trained in questioning children, and in some countries special departments have been established within the police force which investigate those cases where children are the victims, perpetrators or witnesses (Belgium, Italy, Spain, the Netherlands), while in other countries children are questioned by qualified social workers (cantons of Bern and Schaffhausen in Switzerland). In some systems the police may question a child in the presence of his/her parents or another person the child has confidence in (Cyprus, Malta, Spain), or may question them in the presence of a social worker (Denmark). In some systems children are questioned during the pre-investigation or investigation procedure and this is recorded and may be admitted in evidence in court (Belgium, Denmark, Germany, Norway, Sweden). Belgium, for instance, prescribes that a child may only be questioned once. In Austria, the investigating judge is assisted by a paediatric psychologist during questioning. In England and Wales, Ireland and Scotland children undergo special preparation before being questioned in court. Special brochures explaining the course of the judicial proceedings and the role of the victim/witness in the proceedings have been prepared, special services have been set-up to help child-witnesses, explanations are given to the children on what a court looks like and what goes on there. In Greece, parents or legal guardians may testify in lieu of children. In Edinburgh, special courtrooms are constructed which have been purposely adapted for questioning children. In some systems, questions during the proceedings which involve children may only be asked by the presiding judge. All other parties in the case may only ask questions through the judge (for instance in Belgium, France, Germany, Italy). This protects children from unpleasant questions and expedites the procedure. Most systems offer the option of questioning children by closed-circuit television (Austria, England and Wales, Italy, Ireland, Portugal, etc.). The use of video recordings of testimonies is frequently permitted in court (Denmark, Norway, Sweden, Germany).

117 Rule 96 of the ICTY Rules points out that in cases of sexual assault no corroboration of the victim’s testimony is required, and that consent shall not

be allowed as defense if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear, forced, detained, or psychological oppressed. Moreover, previous sexual conduct of the victim cannot be admitted as evidence. 118 Rule 88 of the ICC Rules.

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A large number of systems do not pay any special attention to how the mentally disabled are questioned (Cyprus, Denmark, France, Germany, Greece, Iceland, Italy, etc.). Some legal systems permit mentally disabled people to be accompanied, during questioning, by individuals they trust (Austria, Belgium, England and Wales, Ireland, Switzerland). Some print special brochures explaining the course of the criminal proceedings and the role of witnesses. They may be questioned by closed-circuit television (Austria, Germany, Scotland). Countries with special facilities used to question children often use these facilities for questioning people with mental disabilities (Belgium, Denmark, Iceland, the Netherlands, Norway, Sweden). In Norway, the mentally disabled also have the right to be questioned by a professional specialised in working with people with mental disabilities. In relation to the questioning of victims of sexual assault and domestic violence, different measures are undertaken both by the police, the state attorney’s office and the courts. The police try to make sure the interrogator is the same sex as the victim/witness (England and Wales, the Netherlands, Portugal and Switzerland), that a person who the victim/witness trusts is present during the questioning (England and Wales, the Netherlands, Portugal). Special units for investigating domestic violence and/or sexual assault are being set up within the police force (Ireland, Luxemburg, Cyprus, England), special facilities are provided for questioning victims of sexual assault (England and Wales, Scotland, Ireland, Norway) and Iceland has set up a trauma centre for rape victims, located at a hospital. Victims of sexual assault are questioned at such centres by specially trained personnel, a forensic assessment of the victim is conducted and evidence gathered. Special guidelines exist for questioning victims of domestic violence and/or sexual assault which oblige the interrogator to explain to the victim/witness why unpleasant questions are being asked and to prepare the victim/witness for cross-examination (for instance in England and Wales). These guidelines emphasize that victims/witnesses may not be asked questions or be exposed to remarks which accuse the victim or indicate distrust as regards their story (Belgium, the Netherlands). A victim may refuse to answer a private question (Switzerland). In most systems it is possible to question a victim/witness in the absence of the defendant (Austria, Germany, Iceland, the Netherlands, Norway, Portugal, Switzerland). Questions about the sexual life and preferences of the victim can not be asked (Cyprus, England and Wales, Ireland, Malta, Scotland). A victim/ witness is permitted to testify by video link and the use of video recordings of testimonies, taken in the investigation process, are admitted in court hearings (for instance in England and Wales). In some systems a victim cannot be confronted with the defendant without the victim’s consent. In cases when the victim does not want the defendant to be present, his/her testimony is conducted by video link so that the defendant may follow it or, when this is not possible, it is read to the defendant so as to allow him/her to ask questions (Switzerland). It is important to keep the number of questions a victim is asked to a minimum in order to prevent secondary victimisation. The number of times a victim will be questioned during criminal proceedings depends largely on whether the criminal proceedings are based on the rule of legality or opportunity (the state attorney’s office may decide not to prosecute the defendant), to which extent the principle of oral presentation is applied (all evidence must be produced at the main hearing) or what consequences the defendant’s admission of guilt entails. Some systems do not limit the repeated questioning of victims (Cyprus, France, Germany, Iceland, Ireland, Italy, Spain and others), some limit the repeated questioning of vulnerable victims (Belgium, Denmark, the Netherlands, Norway, Portugal, Sweden) and others limit the repeated questioning of all victims (Belgium, the Netherlands, most Swiss cantons).

4.3.4. Protection of the dignity of victims/witnesses in the legislation of the Republic of Croatia The CPA does not mention protecting a victim’s dignity and treating him/her with respect. It does, however, prescribe that tactful questioning be used for minor victims/witnesses in order to avoid negatively affecting their psychological state. When introducing cross-examination into the criminal proceedings of RoC119, it is important to establish judicial chambers with the authority to supervise the method used to question victims and witnesses, in order to avoid their being harassed and intimidated, particularly when questioning victims of sexual assault.120 The legislation of the RoC encompasses a whole range of provisions contributing to the protection of the dignity of a victim/witness and the protection of a victim/witness from secondary victimisation during criminal proceedings, although this is not their primary purpose. Spouses or extramarital partners of the defendant, his/her relatives of lineal descent, relatives of collateral descent to the third generation conclusively and kin through in-laws to the second generation conclusively, the adoptee and adopter of the defendant, are exempt from the obligation to testify (Art.

119 See CPA, Art. 337, para 4, Art. 343 and Art. 351, para. 2. 120 For more see Rule 88 (5) of the ICC Rules.


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244, para. 1 of the CPA). A minor who, due to his/her age and mental development, is incapable of understanding the significance of the right to refuse to testify, may not be questioned as a witness, however information obtained from him/her by professionals, relatives or other people in contact with him/her may be admitted in evidence (Art. 244, para. 4 of the CPA). A victim/witness has the right to refuse to answer a certain question if the answer would expose him/her or a close relative to serious shame. (Art. 246 of the CPA).121 The presiding judge may warn those present at the hearing to behave in an orderly manner and not to disrupt the court’s work (Art. 316, para. of the CPA). A judicial chamber may order the removal of the audience from the session at the main hearing, if the measures for maintaining order provided for under the CPA cannot ensure the unobstructed course of the proceedings (Art. 316, para. 2 of the CPA). The defendant and his attorney may be warned, fined, sanctioned or removed from the courtroom if they obstruct the court process or fail to comply with the orders of the chamber (Art. 317, para. 1-3 of the CPA). In exceptional cases the chamber may decide to temporarily remove the defendant from the courtroom when a co-defendant or a witness refuses to testify in the defendant’s presence, or when the circumstances indicate that they will not speak the truth in the defendant’s presence. Upon the defendant’s return to the session, the co-defendant’s or the witness’s testimony will be read to him/her. The defendant has the right to ask the co-defendant or the victim questions, and the presiding judge will ask him whether he has any comments regarding their testimony. When necessary, confrontation may be ordered (Art. 355 of the CPA). Removing the defendant from the courtroom during the testimony of a victim/witness in order to prevent secondary victimisation, loses its purpose if the defendant is then given the right to directly question the victim/witness. The presiding judge has the obligation to overrule a question or deny an answer to a question already asked if it is legally not permissible or does not refer to the case. If the presiding judge prohibits a certain question from being asked or does not allow the witness to answer it, the parties may demand that the chamber reaches a ruling on this issue (Art. 343, para. 2; Art. 353 of the CPA). Unfortunately, the legislator has failed to establish questions referring to a victim’s prior sexual conduct in sexual assaults cases as impermissible. The Criminal Procedure Act (CPA) and the Minors Courts Act (MCA) stipulate special protection for the following victims/witnesses (injured parties) from secondary victimisation: 1. children and minors (Art. 248, para. 4 and 5 of the CPA; Art. 340 of the CPA; Art. 119 of the MCA), 2. individuals who are incapable of responding to the court summons due to their age, illness, a serious physical handicap or mental condition (Art. 247, para. 3 and Art. 248, para. 6 of the CPA), 3. other witnesses, when this is necessary due to their age, physical and mental condition or other justified interests (Art. 254, para. 5, Art. 348, para. 1, item 1 of the CPA).

Unfortunately, the CPA does not designate other groups (victims of sexual assault, victims of domestic violence, human trafficking, terrorism, etc.) as especially vulnerable groups of witnesses.

4.3.4.1. Protection of children and minors injured by a criminal offence Children and minors who have been injured as a result of a criminal offence must be questioned tactfully so that their mental state is not harmed. Their age, character traits, education and the conditions they live in, should all be taken into consideration (Art. 248, para. 4 of the CPA, Art. 119, para. 1 of the MCA). The CPA refers to the tactful questioning of children and minors. The protection of dignity and tactfulness in the treatment of all criminal offence victims/witnesses, particularly of vulnerable groups must be guaranteed.122 When a child injured as a result of a criminal offence is questioned as a witness (Art. 248, para. 5, Art. 346, para. 3 of the CPA, Art. 119 of the MCA), he/she is questioned in the presence of and with the assistance of a psychologist, pedagogue or other professional. The questioning of the witness is recorded by technical video and audio transfer devices, and it is conducted without the presence of a judge or parties in the room where the witness is located, so that the parties may only ask the witness questions through the investigating judge, psychologist, pedagogue

121 The court must inform the victim about this (CPA, Art. 246). 122 See Art. 4 and 6 (d) of the UN Declaration on Justice for Victims, Art. 1 and 8 of the Recommendation CE R (85) 13; Art. 2 of the EU Framework Decision of 15 March 2001.

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or another person. A witness who is an injured child or a minor (between 14 and 16 years of age) may only be questioned twice in cases referred to under Article 117 of the MCA123, (Art. 119, para. 2 of the MCA). Children and younger minors who are witnesses, injured as a result of a criminal offence referred to in Art. 117 of the MCA may be questioned at home or at another location where they reside, or at the social welfare centre (Art. 119, para. 3 of the MCA), instead of at court. When a child or a younger minor has been questioned in the above-described manner, minutes will be read at the main hearing regarding the witness’s testimony, or a reproduction of the recording will be presented (Art. 119, para. 4 of the MCA). The recorded material shall be destroyed after 5 years (Art. 119, para. 5 of the MCA). The court president will, upon motion of the investigating judge or a judge for minors, appoint a representative for the minor from the list of attorneys, when he deems this necessary, in order to ensure the legal interests of the minor injured party or the minor injured party in the role of a prosecutor (Art. 120 of the MCA). If a minor is present at the main hearing as a witness or an injured party he/she will be removed from the courtroom as soon as his/her presence is no longer required (Art. 340 of the CPA). The summoning of a witness who is a minor, and who is not yet 16 years old, is done through the minor’s parents or legal guardians, unless this is impossible due to reasons of urgency or other circumstances (Art. 247, para. 2 of the CPA). In proceedings conducted before the courts for minors or in the proceedings referred to in Art. 117 of the MCA124, special provisions regarding the composition of a judicial chamber and the cooperation of expert assistants shall apply (Art. 37, 40, 42 in relation to Art. 124 of the MCA). Judges for minors at municipal and county courts and the state attorneys active in these courts (state attorneys for minors) must have an expressed inclination for education, the needs and benefits of minors, and must have a basic knowledge of the field of criminology, social pedagogy and social welfare for minors. Jurors for minors are appointed from among professors, teachers, pedagogues and other people with experience in educating the young. Courts for minors and state attorney’s offices active at such courts, use the services of expert associates (counsellors): social pedagogues-special education professionals and social workers.

4.3.4.2. Protection of special categories of victims/witnesses of age (the elderly, ill, people with mental disabilities and others who require it due to justified interests) Witnesses who are unable to respond to a summons due to age, illness, a serious physical handicap or a mental state, may be questioned at their home or at another location where they reside. Such witnesses may be questioned by technical devices for the transfer of images and sound. When this is required due to the witnesses’ condition, the questioning will be organised so that the parties may question the witness without being present in the room where the witness is located. An expert medical witness or another professional or interpreter will be appointed for such questioning, if necessary (Art. 248, para. 6 of the CPA).125 In relation to age, physical or mental condition or other justified interests, any witness may be questioned by a technical device for the transfer of images and sound so that the parties may question the witness without being present in the room where the witness is located (Art. 254, para. 5 of the CPA). Specific methods of questioning must be implemented for victims of sexual assault and other traumatized victims and witnesses (including victims and witnesses of domestic violence).126 The trauma of domestic violence and sexual assault and the need to protect the victims of these forms of violence from secondary victimisation must be considered as justification for implementing a special method of questioning. Minutes of the witnesses’ testimonies may, pursuant to a decision of the chamber, be read if the questioned person has become mentally ill or his/her appearance at court is impossible or seriously hampered due to age, illness or other important reasons (Art. 348, para. 1, item 1 of the CPA).

123 Aggravated murder (CC, Article 91), infanticide (CC, Article 93), participation in suicide (CC, Article 96), unlawful deprivation of freedom (CC, Article

124), kidnapping (CC, Article 125), abuse in the line of duty or public authority (CC, Article 127), violent domestic behaviour (CC, Article 215.a), rape (CC, Article 188), sexual intercourse with a disabled person (CC, Article 189), sexual intercourse under duress (CC, Article 190), sexual intercourse by abuse of power (CC, Article 191), sexual intercourse with a child (CC, Article 192), sexual misconduct (CC, Article 193), masturbation in front of a child or a minor (CC, Article 194), pandering (CC, Article 195), abuse of children or minor in pornography (CC, Article 196), introducing pornography to children (CC, Article 197), incest (CC, Article 198), violation of support obligations (CC, Article 209), abduction of a child or minor (CC, Article 210), change in family status (CC, Article 211), child abandonment (CC, Article 212), neglect and maltreatment of a child or minor (CC, Article 213), extramarital living with a minor (CC, Article 214), prevention and non-implementation of measures for the protection of a child or minor (CC, Article 215), enslavement and transport of slaves (CC, Article 175), international prostitution (CC, Article 178). Although all of the above mentioned criminal offences might be committed within the family, only those typically committed in a family have been indicated in bold. 124 Id. 125 All county courts in the Republic of Croatia have been equipped with devices for the transfer of images and sound in 2002. 126 See Art. 68, para. 1 of the ICC Statute, Art. 96 of the ICTY Rules, Recommendation Rec (2002) 5, par. 42.


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4.3.4.3. Protection of victims/witnesses in misdemeanour procedures Among all the measures for the protection of victims/witnesses envisaged by the CPA, the Misdemeanour Act only mentions that during the questioning of a minor, particularly if he/she is injured by the misdemeanour offence, a tactful approach shall be implemented so that the questioning does not have a harmful influence on the psychological condition of the minor. Such questioning, when necessary, will be conducted with the assistance of a pedagogue, psychologist or another professional (Art. 177, para. 3 of the MA). It has additionally been prescribed that a minor-witness who is not yet 16 years old should be summoned through the parents or a legal guardian, and that witnesses who are unable to respond to the summons due to age, illness, a serious physical handicap or a mental state, may be questioned at home (Art. 174, para. 2 of the MA). The MA stipulates that the provisions of the CPA will apply (Art. 78, para. 2 of the MA), unless there are special circumstances in the proceedings, for example in proceedings conducted against minors where the relevant provisions of the MCA shall apply. It would be better, however for the MA to stipulate all the necessary measures to be taken to protect victims/witnesses from secondary victimisation, i.e. that the MA sets out the application of MCA provisions as subsidiary.

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4.3.5. Survey results Individuals involved in penal proceedings must treat the victims and witnesses with consideration and respect their dignity. The survey results indicate that our judicial authorities and officials do mostly meet these expectations, however that there is still room for improvement. About 60% of the respondents felt uncomfortable during the proceedings, 43.4% of which was due to the overall atmosphere in court, 17.8% due to the act of another person, and 9.3% due to another reason (mostly due to the presence of the defendant or for being unfamiliar with the course of proceedings). See Image 13.

Image 13. Did the witnesses feel uncomfortable

50,00 % 43,4%

45,00 %

41,4%

40,00 % 35,00 % 30,00 % 25,00 % 20,00 %

17,8%

15,00 %

9,3%

10,00 % 5,00 % 0,00 % Someone’s behaviour

The overall atmosphere in court

I did not feel particularly uncomfortable

Other reasons

Most of the respondents felt uncomfortable during the actual testimony in court (42.3%) or while waiting in court for their turn to testify (33.1%). 13.1% of the respondents felt uncomfortable during their contact with the police and during the investigation process. See Image 14. The level of discomfort of victims/witnesses was much higher during the actual trial then during the investigation process.


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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

45,00 %

42,3 %

40,00 %

33,1 %

35,00 %

64

30,8 %

30,00 % 25,00 % 20,00 % 15,00 %

13,1 %

13,8 % 6,9 %

10,00 % 5,00 % 0,00 % In contact with the police

Image 14. When did the witnesses feel uncomfortable

During the preliminary investigation proceedings

While I waited for my turn to testify in court

During my testimony

Following my testimony, while I was still in court

I did not feel particularly uncomfortable

Image 15 shows why the witnesses felt uncomfortable.

I was worried about the consequences my testimony would have for me or those close to me

31,5%

I was afraid to face the defendant

30,8% 26,9%

I have never been a witness before and was not aware of what it was like 17,7%

I was not informed enough about my role as a witness

16,9%

I was too close to the defendant in the courtroom

12,3%

I was in the waiting room with the defendant 7,7%

I felt alone during the trial I am afraid that everything will be published in the media

6,2%

The attorney was rude and/or condescending

6,2% 3,1%

I felt guilty for what happened The public prosecutor was rude and/or condescending The judge was rude and/or condescending

0,8% 0,0% 30%

I did not feel particularly uncomfortable

Image 15. Why did the witnesses feel uncomfortable

Something else

3,10%

Most of the respondents felt uncomfortable due to their fear of a possible encounter with the defendant – 30.8%, due to sharing a waiting room with the defendant (12.3%), odue to being located too close to the defendant in the courtroom (16,9%). Among the respondents, 36.9% stated that they felt the need for protection from contact with the defendant. Research of war crimes witnesses’ experiences indicate that a significant number of witnesses felt deeply disturbed after having received a summons for the court hearing and were afraid of an encounter with the defendant in court. The encounter with the defendant was a strong source of renewed trauma. They were disturbed by the fact that the defendant sat behind them during the testimony and they were unable to see him.127

127 See chapter 6.3.


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This demonstrates the importance of constructing separate waiting rooms for victims/witnesses (over 94% of the witnesses waited for their testimony in the hallway – which occurred more frequently at smaller courts than at larger ones), of appropriate seating arrangements in the courtrooms, and of allowing testimonies to be given without the presence of defendants. A large number of respondents felt uncomfortable due to the unknown situation – 26.9% of respondents had never been witnesses before and were not aware of what to expect, 17.7% were not sufficiently informed about their role as a witness 128 – this is why it is important to inform witnesses about what to expect in court129 and to provide them with the opportunity to tour the court130 etc.

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A certain number of witnesses felt uncomfortable because they felt alone during the trial (7.7% of the respondents). Only 35.7% of the respondents stated they had no need for support in the courtroom during their testimony, others have shown the need for support from a person who would provide help to victims/witnesses (32.6% of the respondents), for the support of an attorney (27.9% of the respondents) and for the support of a person close to them (25.6% of the respondents). See Image 16.

40,00 % 32,6 %

35,00 % 27,9 %

30,00 % 25,00 %

35,7 %

25,6 %

20,00 % 15,00 % 10,00 % 5,00 % 0,00 % Of someone close to you

Of an attorney

Of a person providing help to witnesses/victims

I do not need such support

War crimes victims pointed out that they felt completely alone in the courtroom and that everyone was against them. In cases where a representative of a human rights organisation was present in the courtroom, with whom they had had prior contact, they felt much better.131 This indicates the need for allowing the victims/witnesses to bring someone that they trust to the trial and that one of the tasks of the services providing help to victims/ witnesses should also be the provision of moral support during their testimony. This is particularly important for vulnerable groups of witnesses. According to the research, the discomfort the victims/witnesses felt in a certain number of cases (6.2%) was caused by the actions of attorneys and much less by the actions of the state attorney. Respondents who were very satisfied and satisfied with the treatment given them by the police amounted to 76.9%, with the treatment given by the attorneys 84.1%, with the treatment given by the state attorney 89.3% of the respondents, and with the treatment given by the judge 97.% of the respondents. See Image 17.

128 We have noted that 69% of the witnesses-respondents did not receive any kind of information prior to their arrival at court, and from among those who did receive information, in 32.5% of the cases this information was entirely or partially different from their experience in court. 129 Even so 55.8% of the witnesses-respondents expressed the need to obtain information on their role in court and 51.2% on the course of proceedings. 130 62.5% of the witnesses stated a wish to tour the courtroom prior to testifying. 131 See chapter 6.3.

Image 16. The witnesses’ need for support in the courtroom


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66 Image 17. Comparison of the witnesses’ satisfaction with different institutions in the process: satisfied / very satisfied – unsatisfied / very unsatisfied

Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

100 % 90 % 80 % 70 % 60 % 50 % 40 % 30 % 20 % 10 % 0%

95,5%

97,7%

89,3%

84,1%

76,9%

Very satisfied and Satisfied 23,1%

Dissatisfied and Very dissatisfied

15,8% 10,6%

4,5% 2,3%

Police

Defence attorneys

Public prosecutors

Court officials

Judges

Despite the quite high percentage of satisfaction with judges’ actions, only 62.8% of the respondents thought the judge was interested, 56.6% that the judge respected their opinion, 65,.% that the judge gave them an opportunity to say everything they thought and 49.6% that the judge treated them with respect. Only 7% of the respondents stated that the judge realized they felt uncomfortable or afraid and had talked to them about it. See Image 18. The witnesses’ criticism of judges includes their not having recognized the witness’s discomfort or fear (11.3%), and not having shown sympathy for the consequences this event had on the victim/witness (11,3%). See Image 18.

What do you consider as positive in the way the judge handled the case 62,8%

He was interested

56,6%

He respected my opinion

65,1%

He gave me a chance to say all that I want 49,6%

He treated me with respect He was interested in the consequences this event had for me

22,5% 26,4%

I have a feeling he will take my testimony into consideration when rendering the verdict

24,8%

I liked the way he conducted the main hearing He informed me about my rights and obligations in an appropriate manner

25,6%

Prior to the hearing he informed me what would happen and who all would be present in the courtroom The judge was aware of my discomfort or my fear and has talked to me about it

14,7% 7%

Other reasons

0,8%

Nothing was positive

0,8%

What do you consider as negative in the way the judge handled the case He was not interested

0,0%

He did not respect my opinion

0,0%

He did not give me a chance to say all that I want

0,8%

He did not treat me with respect

0,8% 11,3%

He was not interested in the consequences this event had for me I do not have a feeling that he will take my testimony into consideration when rendering the verdict

3,2%

I did not like the way he conducted the main hearing

4% 7,3%

He did not inform me about my rights and obligations in an appropriate manner

Image 18. What do witnesses consider as positive/negative in the way the judge handled the case

Prior to the hearing he did not inform me what would happen and who all would be present in the courtroom

17,7% 11,3%

The judge was not aware of my discomfort or my fear and did not talk to me about it Other reasons Nothing was negative

0,0% 68,5%


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

A much smaller percentage of the respondents considered that the state attorney was interested (38.5%), respected the opinion of the victim/witness (29.9%), treated the victim/witness with respect (29.9%), and gave the victim/ witness an opportunity to say what he/she wanted (45.3%). Similar low percentages were also obtained for attorneys, with the difference that not respecting the opinion of a victim/witness was more emphasized in regard to attorneys, not providing the opportunity for victims/witnesses to say what they wanted, and disrespectful treatment. See Image 19. A very small percentage of witnesses felt they were asked questions that were irrelevant. See Image 20. Victims/ witnesses of war crimes particularly emphasize having continued to feel stressed long after the trial ended, because the defense had questioned the reliability of their traumatic experience. The behaviour of representatives of the defense team was a source of significant discomfort for witnesses. This included their attitude, ways of questioning (in some cases they felt provoked and their suffering was belittled), and insistence on remembering details (creating a feeling of incompetence in the witness). During their testimony they felt like they were on trial and giving their testimony was a humiliating experience. After returning home the feeling of discomfort had intensified and they were stressed for days.

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Witnesses found it exceptionally important to have the protection of the presiding judge against the rude and provocative attitude of defense attorneys. In cases where the presiding judge warned the participants of the proceedings about their behaviour and maintained order in the courtroom, the witnesses felt the judge was impartial and competent.132 All this indicates that it is necessary to work on educating all the participants in criminal proceedings on secondary victimisation and on questioning techniques, on the avoiding irrelevant questions133 and on the overall respectful treatment that should be given to victims/witnesses.

What do you consider as negative in the way the public prosecutor handled your case He did not work sufficiently on the case

What do you consider as negative in the defence attorney’s handling of the case He did not work sufficiently on the case

7,1%

He was not interested

4,4%

He was not interested

He did not respect my opinion

3,5%

He did not respect my opinion

He did not give me a chance to say all that I want He did not treat me with respect

1,8%

He did not treat me with respect

0,0 %

He did not inform me about the case in an appropriate manner Other reasons

He did not give me a chance to say all that I want

He did not inform me about the case in an appropriate manner

9,7% 2,7%

Other reasons

Nothing was negative

73,5%

What do you consider as positive in the way the public prosecutor handled your case He worked sufficiently on this case

38,5%

He respected my opinion

45,3%

He treated me with respect

29,9%

He informed me about the case in an appropriate manner Nothing was positive Other reasons

11,1% 0,8%

10,5% 14,9% 13,2% 6,1%

Nothing was negative

71,1%

What do you consider as positive in the defence attorney’s handling of the case 29,4%

He was interested

42% 27,7%

He gave me a chance to say all that I want

37,8%

He treated me with respect He informed me about the case in an appropriate manner Other reasons

8,5%

13,2%

He respected my opinion

29,9%

He gave me a chance to say all that I want

7,0%

He worked sufficiently on this case

29,9%

He was interested

10,5%

Nothing was positive

26,1% 11,8% 7,6% 16,8%

132 See chapter 6.4. 133 7.1 % of the witnesses were asked questions which they considered irrelevant or for the most part irrelevant for resolving the case, 30.7%

considered that the questions were for the most part relevant; 62.2% believed that the questions were entirely necessary for criminal proceedings.

Image 19. What do you consider as negative/positive in the state attorneys’/ attorneys’ handling of the case


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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

No, for the most part 4,7 %

Not at all 2,4 %

68 Image 20. Opinion of the witnesses about whether the questions they were asked in court were necessary for the criminal proceedings

Yes, for the most part 30,7 %

Yes, entirely 62,2 %

There are different possibilities at the disposal of judges which serve to reduce secondary victimisation and decrease the discomfort of victims/witnesses. These are the temporary removal of the defendant from the courtroom (98.2% of the judges), exclusion of the public from the main hearing (80.1%), questioning through technical devices (92.7%), a special means of questioning and participation of the witness in the proceedings (98.1%). Most judges rarely or never use them, although they find them relatively useful. It is indicative that 55.6% of the judges who participated in the survey have never used of special means of questioning and participation of the witness in the proceedings. The average frequency of using legal measures for witness support is demonstrated in Image 24. This indicates that judges mostly use the measures of custody and exclusion of the public from the main hearing. In order to ensure the adequate treatment of victims/witnesses, it is exceptionally important to implement an appropriate training programme for the police, the state attorneys, attorneys and judges. The survey conducted with the county court judges in charge of criminal cases demonstrates that 76.7% of the judges who completed the questionnaire felt that more explicit information should be available regarding measures of support for victims/ witnesses. In fact, 91.3% of them emphasized that the number of professional training programmes currently available regarding applying support measures for victims/witnesses is insufficient. Judges have furthermore pointed out that the sessions of court departments do not include discussions about the issues of support measures (73.8%), that no clear instructions/guidelines exist on how to apply regulations pertaining to these measures (64.4%) and that the practice of (58.7%) and professional literature (54.8%) on the application of support measures is insufficient. See Image 29.

4.3.6. Recommendations 1. It is necessary to guarantee the protection of dignity and tact in the treatment of all criminal offence victims/ witnesses, particularly of the especially vulnerable groups.134 At present this is guaranteed only for children and minors. 2. The presiding judge, i.e. the judicial chamber, must permanently supervise the questioning method in order to avoid the intimidation and humiliation of the witness (in this respect Art. 238 – 343, para. 2, Art. 353 of the CPA have been prescribed too narrowly).135 3. Repeated questioning of, at least the vulnerable groups, must be limited (for now, only children and minors who have been injured have limited protection in this respect). It is desirable that this should be applied to all witnesses. The number of times a victim/witness is questioned is not only significant for the perception that the victim/witness will have of the criminal proceedings, but will also influence his/her readiness to cooperate with penal authorities in the future. Permission to use video recordings of testimonies from the investigation process in court hearings should be granted for vulnerable groups of victims/witnesses. The questioning of children in the pre-investigation or the investigation process should be recorded and such recordings admitted as evidence in court.

134 See Art. 4 and 6 (d) of the UN Declaration on Justice for Victims, Art. 1 and 8 of the Recommendation CE R (85) 13; Art. 2 of the EU Framework

Decision of 15 March 2001. 135 Recommendation Rec (2002) 5, para. 43. 136 See Rule 88 (2) of the ICC Rules


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

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4. The mandatory presence of a parent, legal guardian or trusted person during the questioning of children or individuals with mental disabilities, should be prescribed.136 In fact, this right should be guaranteed to individuals with mental disabilities and other vulnerable groups of victims. Each witness should have the right to have a person they trust present during testimony. 5. When questioning victims/witnesses who are especially vulnerable to secondary victimisation (the CPA limits this exclusively to children - injured parties and to an extent to the elderly, the ill and people with physical handicaps or mental disabilities) the presence and help of a psychologist, family member or attorney should be permitted. 137 Appointing a person who would make sure the child’s interests are taken into consideration during the process needs to be looked into. 6. Provisions stipulating that victims may be questioned only to the point necessary to accomplish the purpose of criminal proceedings need to be introduced.138 Victims of sexual assaults and domestic violence must be granted the right to refuse to answer private questions. Questions related to the sexual lifestyle and sexual preferences of the victim should be prohibited. Witnesses should only be asked questions relevant for the proceedings.139 7. Avoidance of an encounter between the victim and the perpetrator at court needs to be ensured, except when this is necessary for criminal proceedings, by providing special waiting rooms for victims.140 8. The CPA must include a provision on the right of a victim/witness to be provided with an attorney (in Croatia this right has only been provided to the injured party when acting as prosecutor - Art. 60, para. 2 of the CPA). 9. In sexual assault and domestic violence cases, efforts must be made for the interrogator to be of the same sex as the victim/witness and to be specially trained for questioning such individuals. The creation of a special unit for investigating domestic violence and/or sexual assault within the police force is recommended. The questioning of these individuals should be conducted in rooms specially designed for the purpose. 10. It is recommended that a special guide be prepared for the questioning of victims of domestic violence and/or sexual assault and victims of war crimes. The guide should oblige the interrogator to explain to the victim/ witness why unpleasant questions are being asked, instructing him/her how to prepare the victim/witness for cross-examination, and warning him/her that victims/witnesses cannot be asked questions or be exposed to comments accusing the victim or demonstrating distrust in their story. 11. Appropriate training, of all personnel participating in criminal proceedings, on how to treat the victims, particularly the vulnerable groups, should be organised.141 It is important to not only educate police officers, but also state attorneys, attorneys and judges, especially with regard to the questioning of vulnerable groups of victims/witnesses. During training, they need to be introduced to the concept of secondary victimisation and different means of questioning – that they may not blame the victim, that the victim may be in shock after the event and that they must show understanding for the victim – even in a less significant incident. The fear that this would decrease the independence of judges is unfounded. 12. A witness programme should be established, with a view to informing the witness about the course of criminal proceedings and the role of a victim/witness in it, and familiarizing the victim with what the courtroom looks like in order to reduce the shock effect victims/witnesses feel when they arrive at court for the first time. This should improve the quality of their testimony. This programme should also provide psychological support to the victim/witness during the entire course of the criminal proceedings. 13. The police should ensure that children are questioned by professionals specially trained in questioning children, and special departments for investigating cases involving children either as victims, perpetrators or witnesses need to be established. The police should question a child in the presence of parents or another person the child trusts, or in the presence of a social worker. 14. All property/objects need to be returned to the victims/witnesses as soon as possible.

137 Id. 138 Art. 3, para. 2 of the EU Framework Decision of 15 March 2001 139 Art. 3 of the EU Framework Decision of 15 March 2001, Art. 343, para. 2 of the CPA 140 Art. 8, para. 3 of the EU Framework Decision of 15 March 2001 141 Id., Art. 14

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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4.4. The right of victims/witnesses to protection

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The right of victims to protection includes protecting their personal safety (in which case the protective measures include protection from the public or the defendant),142 their privacy protection (protecting the victim from the public), and protection of victims from renewed victimisation (re-victimisation).143 Victims are guaranteed the right to physical and psychological integrity mainly when they participate in criminal proceedings as witnesses, so that they may testify freely and without fear.144 This protection is primarily motivated by the effort to ensure their testimony is given and to establish the truth. Particular emphasis should be given here to ensuring a balance between the victim’s right to protection and the defendant’s right to an equitable and impartial trial145, and that the protective measures undertaken are efficient. However, awareness is on the rise that each victim, regardless of whether he/ she participates in criminal proceedings as a witness or a party, needs to be provided with protection of his/her physical and psychological integrity especially those victims at risk of intimidation, revenge or re-victimisation.146 In other words, for specially vulnerable categories of victims like children, people with learning disabilities, victims of domestic violence and other victims exposed to re-victimisation, such as victims of human trafficking, sexual assault, different types of intimidation, racism or hate crimes. This does not exclude the option of providing special additional protective measures147 to victims testifying in criminal proceedings, particularly in cases involving organised crime,148 terrorism or violations of international humanitarian law.149 Provision of testimony cannot be a condition to provide support, protection and help to a victim .150 It is a big step that Croatia has finally introduced victim protection into its criminal proceedings,151 although this protection is limited only to those victims in the role of witnesses in criminal proceedings. The protective measures introduced are primarily focused on protecting the personal safety of victims/witnesses, and partially on their privacy protection.

4.4.1. Guaranteeing the right of victims/witnesses to physical and psychological integrity in international documents The right of victims/witnesses to the protection of physical and psychological integrity has been guaranteed by a whole range of international documents. The need for their protection prior to, during and after criminal proceedings is emphasized.152 Special protection may be necessary for victims assuming the role of witnesses153 in the proceedings, and those victims at risk of intimidation, revenge or renewed victimisation.154 In addition to the

142Art. 6 (d) of the UN Declaration on Justice for Victims emphasises the right of victims and their family members to protection from threats and

revenge, as well as protection of their privacy; Art. G, Recommendation no. R (85) 11. 143 Art. 10.2 of the Recommendation Rec (2006) 8 144 Art. II 1 of the Recommendation no. R (97) 13; Art. 10.1 of the Recommendation Rec (2006) 8 145 The right to an equitable and timely trial has been guaranteed by Art. 14 (1) of the International Covenant on Civil and Political Rights; Art. 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 222, 224, reprinted in 45 Am J. Int’l L. Supp. 24 (1951), available at http://www.pfc.org.uk/legal/echrtext.htm, and Art. 8 (1) of the American Convention on Human Rights, 22 November 1969., 1144 U.N.T.S. 123 (entered into force on 18 July 1978), available at http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm. 146 Art. 10.2 of the Recommendation Rec (2006) 8 147 Art. 10.2 of the Recommendation Rec (2006) 8 148 Art. 25, Recommendation no. R (96) 8 149 Art. 10. Recommendation Rec (2005) 9 150 Art. 12.6. European Convention on Action against Trafficking in Human Beings; Paragraph 39 of the Comment of Recommendation Rec (2006) 8 151 Systematic protection of victims/witnesses in criminal proceedings has been introduced in the last three to four years by amendments to the Criminal Procedure Act, Art. 338, para. 4, 5 and 6, Art. 338 (a) – 238 (e), Art. 239, para. 5, Art. 329; revised text 62 OG 2003, Art. 248, para. 4, 5 and 6, Art. 249 – 253, Art. 254, para. 5, Art. 346 and with the adoption of the Witness Protection Act. Even before these amendments to the legislation, possibilities for protecting victims of criminal offences existed. For instance, questioning of a child-victim of a criminal act (injured party) could be conducted with the help of a psychologist, pedagogue or another professional, and required that minor victims or witnesses be questioned tactfully; see Art. 238, para 5 of the CPA, 110 OG 97. In this respect see Dubravka Hrabar, Child – victim and witness in criminal proceedings, 7 HLJKPP 221 (2000). Another option that existed previously was the exclusion of the public from the entire main hearing or its part in order to protect the personal or family life of the injured party or another participant in the proceedings or for the protection of a minor’s interests, CPA of 1997, Art. 293. 152 Art. 2 of the Recommendation Rec (2005) 9; Art. 28, Para. 1 of the European Convention on Action Against Trafficking in Human Beings; Art.

II. 2 of the Annex to the Recommendation no. R (97) 13; Art. 6. EU Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings 153 Art. 10.1 of the Recommendation Rec (2006) 8. A good guide in this sense is Recommendation R (1997) 13 referring to the threatening of witnesses

and the right to defense, and Recommendation R (2005) 9 on the protection of witnesses and collaborators with the judicial system 154 Art. 10.2 of the Recommendation Rec (2006) 8; Art. 44 of the Annex to the Recommendation Rec (2002) 5


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

protection of victims and witnesses, some documents also require that protection be given to the people who have reported the criminal offence or have in other ways cooperated with investigating authorities or the state attorney’s office, and victim’s family members. 155 The European Convention on Action Against Trafficking in Human Beings also stipulates the protection of non-governmental organisations and other organisations involved in the detection and prevention of human trafficking. Procedures and facts on establishing, applying, modifying and revoking protective measures and programmes must be confidential, and their disclosure must be penalised.156 The intimidation of witnesses and those close to them must be sanctioned either as a separate criminal offence or encompassed by the general criminal offence of threat.157 By taking into consideration the effect intimidation has on victims/witnesses, their testimonies obtained prior to or during an investigation should be admissible at the main hearing.158 Alternative methods of testifying must be introduced, which protect witnesses from intimidation as a consequence of direct contact with the perpetrator of a criminal offence159. Such methods, which protect the identity of a witness, may include audiovisual recordings of testimonies given during the pre-investigation or investigation process; admission of testimonies obtained during the investigation at the hearing; whether the defendant had the opportunity to cross-examine the witness; disclosure of the witness’s identity as late as possible in the proceedings or disclosing only certain facts about the witness; exclusion of the media and/or public from the entire or parts of the main hearing; and use of instruments preventing physical identification of witnesses (curtains, deforming face and/or voice, videoconference, anonymous witnesses).160 Anonymous witnesses should be used only on an exceptional basis, and the other side must have the option of questioning the need to grant an anonymity status to a witness, his/her credibility and the source of his/ her information. The anonymity status may be granted to a witness only if his/her life or that of the individuals close to him/her is in serious danger, when his/her testimony is exceptionally important and if the witness is credible. A judgment should never be based exclusively on the testimony of an anonymous witness.161 Victim/witness protection programmes include physical protection, relocation, change of identity, assistance in finding work.162 Children must be provided with special measures focussed entirely on the best interests of the child.163 Decisions on the application of protective measures and programmes for victims/witnesses must be made taking into consideration the particular involvement of these people in criminal proceedings (whether in the role of a victim, witness, collaborator, co-perpetrator), the relevance of his/her contribution, the level of intimidation, his/her will and disposition to be subject to protective measures and programmes, whether other evidence exists in addition to the testimony of the witness in question, which may be sufficient for reaching a verdict, and the proportionality between the type of protection and the level of intimidation.164 In cases where victims might be in danger, he/she must be informed, if necessary, about the defendant’s or convict’s release from custody or imprisonment.165 The victim has the right to choose not to receive this information, when its delivery is not mandatory under the provisions establishing certain criminal proceedings.166 In regard to the protection of domestic violence victims, the following precautionary measures may also be undertaken: permission for the police to enter a home and arrest the perpetrator, permission for judges to order precautionary measures like a restraining order forbidding perpetrators from having contact with, addressing or approaching the victim, to reside in or visit certain areas, and to penalise violations of these measures.167

155 Art. 28 of the European Convention on Action Against Trafficking in Human Beings 156 Art. 2 of the Recommendation Rec (2005) 9 157 Art. 3 of the Recommendation Rec (2005) 9, Art. II. 3 of the Annex to the Recommendation R (97) 13 158 Art. 5 of the Recommendation Rec (2005) 9 159 Id. Art. 6. 160 Id., Art. 17, Art. II 6 and III 9 and 12 of the Annex to the Recommendation R (97) 13; Art. 8, Para. 4 of the EU Framework Decision on the Standing of Victims in Criminal Proceedings, supra note 161 Id. Art. 18-21; Art. III. 10 and 11 of the Recommendation R (97) 13. For more details on the anonymous witness institute, see Ksenija Turković, Influence of criminal law on the development of the rights of international crimes victims and victims in general in the European Union and the Republic of Croatia, (54) Faculty of Law Yearbook, University of Zagreb, p. 865-937 (2004) 162 Id. Art. 22.-25, Art. III 14 and 15 of the Recommendation R (97) 13. Art. 28, para. 2 of the European Convention on Action Against Trafficking in

Human Beings 163 Art. 28, para. 3 of the European Convention on Action Against Trafficking in Human Beings 164 Id. Art. 11-14 165 Art. 10.3 of the Recommendation Rec (2006) 8 166 Id. Art. 10.4 167 Art. 58 a, b and f of the Recommendation Rec (2002) 5

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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

Judicial personnel, the prosecution and attorneys must be adequately trained to act in cases where a victim/witness needs protection.168

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States must develop policies which prevent re-victimisation – this must become an integral part of the strategy to provide help to victims and prevent crime. Victims must be informed about the dangers of re-victimisation and ways to reduce its risk, and must be assisted in this.169

4.4.2. Protection of victims/witnesses at international criminal courts The protection of victims has been set out in Art. 22 of the ICTY Statute and further elaborated in detail in Rule 34 of the ICTY Rules, referring to the Victims and Witnesses Section (VWU). 170 Rule 69 of the ICTY Rules ensures the option, in the pre-trial stage, of the non-disclosure of the identity of a victim/witness who may be in danger or at risk until such a person is brought under the protection of the Tribunal (Rule 75 of the ICTY Rules permitting the adoption of measures for the protection of victims/witnesses, Rule 79 of the ICTY Rules prescribing closed sessions and Rule 96 of the ICTY Rules determining detailed conditions for producing evidence in cases of sexual assault apply). Based on these Articles, ICTY has developed a wide-ranging judicial practice regarding the types and application of protective measures for witnesses and victims. The provisions mentioned, as well as the judicial practices of ICTY and ICTR, have significantly influenced the regulation of these issues in the ICC Statute.171 The ICC Statute lays down general principles of victim and witness protection in Art. 68, para. 1, 2, 4 and 5. These principles have been further elaborated in Rule 87 (3) of the ICC Rules. In the ICTY, the Tribunal or the judicial chamber may, proprio motu, order appropriate measures for the privacy and protection of victims and witnesses.172 This may also be ordered at the request of the prosecution or defense, or of the victim or witness concerned or of the Victims and Witnesses Section173, Moreover, ICC Rules determine that, before these measures have been ordered, the Court must consult the Victims and Witnesses Section whenever possible to obtain consent from the victim for this.174 When adopting decisions concerning the application of protective measures, all relevant factors are taken into consideration, like age,175 sex,176 the victim’s health, 177 the nature of the criminal offence concerned and other relevant circumstances,178 the safety situation or the constant danger for victims and witnesses.

168 Art. 7 of the Recommendation Rec (2005) 9 169 Art. 10.5-10.7 of the Recommendation Rec (2006) 8. Once a criminal act has been committed, the likelihood of renewed victimisation increases. For instance, a house broken into previously has a four times higher likelihood of being broken into again within 6 weeks after the first burglary, according to Graham Farrell, Multiple victimisation: Its Extent and Significance, International Review of Victimology (1992) 170 The Victims and Witnesses Section has been set up within the Registry and its task is to propose protective measures for victims and witnesses in line with Art. 22 of the ICTY Statute and provide help and support to victims and witnesses, especially in cases of rape and sexual assault. 171 In addition, the basis for formulating Art. 68 of the ICC Statute was also Art. 43 ILC Draft Statute for an International Criminal Court, Report of

the ILC on the work of its forty-sixth session, 2 May - 22 July 1994, GA, official records, forty-ninth session, supplement no. 10 (A/49/10), Para. 42-91, p. 29-161). 172 Rule 75 (A) 173 According to ICC Rules, the Victims and Witnesses Section does not have this right, but exclusively a counselling role. 174 Rule 87 (1) of the ICC Rules. The joint motion of the US in regard to the decision on witness protection in the Tadić case recommended that ICTY

consult victims and witnesses themselves regarding the decisions on protective measures, and request their consent. Prosecution against Tadić, IT-94-1-A-T, Decision on the Prosecutor’s Motion Requesting Measures for Victims and Witnesses, of 10 August 1995, available at http://www.un.org/ icty/tadic/trialc2/decision-e/100895pm.htm, Para. 11. 175 It is considered that the risk of retraumatisation is much higher in children who were victims or witnesses of criminal offences than in adults. The elderly may also have special needs. Bearing this in mind, the ICTY Rules prescribe that a child who cannot comprehend the significance of the oath may testify without this formality (Rule 90 (c)). Rule 19 (f ) and (g) of the ICC Rules emphasise that special attention must be given to traumatised children or the elderly, particularly those in exile. 176 Rule 96 of the ICTY emphasises that in cases of sexual assault no corroboration of the victim’s testimony shall be required, that consent shall not

be allowed as a defense if the victim has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear. Moreover, previous sexual conduct of the victim shall not be admitted as evidence. 177 A health condition may be relevant provided a person is incapable of arriving to Court due to illness, in which case he/she is granted the option

to testify in writing. Special problems occur in regard to witnesses with mental disabilities since there might be doubt as to the reliability of such individuals’ testimonies. However, the mental disability itself may not be the reason for denying them the right to testify (this would represent the violation of the right for equal treatment and discrimination), however, certain protective mechanisms need to be created to reduce the potential unreliability of their testimonies. In the Furunđija case, for instance, the defense requested that the testimony of a rape victim be denied as the victim had been in therapy due to trauma caused by the rape. The court rejected this motion. See Decision of 16 July 1998 and the Scheduling Order of 17 July 1998, quoted according to John R. W. D. Jones, Protection of Victims and Witnesses, in the Rome Statute of the International Criminal Court, A Commentary, Volume II, 1360 (eds. Antonio Cassese, Paola Gaeta, John R.W.D. Jones, 2002). 178 Rule 68 (2) of the ICC Statute.


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During the investigation stage the prosecutor is responsible for ensuring protective measures are available for victims and witnesses. Once the defendant is placed in custody and has appeared in court for the first time, the Court becomes authorised to decide upon these measures, since they must be adjusted to the defendant’s rights to an equitable and impartial trial, and the prosecutor being a party in the proceedings is unable to exercise due care in this. With a view to protecting the victim’s safety from the defendant, the ICTY Rules stipulate that in exceptional circumstances the prosecutor may apply to a judge or trial chamber to order the non-disclosure of the identity of the witness to the defendant, if this would put the witness in danger, until the witness has been brought under the protection of the Tribunal.179 Moreover, there have been cases in judicial practice where the victims/witnesses were guaranteed full anonymity from the defendant as well. The ICC Rules do not establish the possibility of using anonymous witnesses. Some of these measures are problematic from the aspect of protecting the rights of defendants and the fairness of court proceedings. In this respect, a particular problem is the application of protective measures in relation to the defendant,180 measures such as: a) anonymous testimonies, b) the use of unauthorised and redacted witness statements, c) the use of summary witness statements, d) the prosecution’s option to not disclose the witness’s identity to the defense, or their full testimony, until the last minute, e) the prosecution’s option to limit the group of people from the defense team to whom the identity of the witness may be disclosed. 181 In the course of its ten years of existence, the ICTY has undergone an interesting evolution in the development of victim/witness protective measures, mechanisms and the ways in which they are implemented. Initially, witness protection was enforced to such an extent that it actually violated the rights of defendants to an equitable and impartial trial. This was because the ICTY had to obtain testimonies from victims and other witnesses during the war, or from witnesses/victims from countries with highly unstable political circumstances (testifying sometimes represented a danger to the victims/witnesses life or the lives of their family members, and they were very reluctant to testify).182 It also applied to circumstances where the prosecution did not have sufficient evidence at their disposal to obtain a ‘guilty’ verdict, without the testimonies of certain “threatened” witnesses.183 184 As the situation in the former Yugoslavia stabilized, the prosecution had more evidence and witnesses at their disposal, and as the pressure from the professional public for a balance between the protection of victims/witnesses and the defendants’ rights increased, the ICTY improved its Rules and established stricter conditions for the application of protective measures for victims/witnesses through its judicial practice, insisting increasingly more on respecting the defendants’ rights to an equitable and impartial trial.185

4.4.3. Comparative analysis Victims are protected from intimidation and revenge by providing them with physical protection, by legal means which deter the perpetrator from intimidating the victim/witness and by providing information to the victim about the perpetrator’s release from custody or jail, which allows the victim to undertake appropriate protective measures on his/her own.

179 Rule 69 (A) and (C) of the ICTY Rules. 180 For details about criticisms regarding the application of protective measures in relation to the defendant, see Turković, supra note 162. 181 In the Kunarac case it has been emphasised that the term “public” cannot include authorities or people assisting the defendant, his/her attorney or the prosecutor in preparing for their share of the case. Prosecution against Kunarac IT-96-13&13/1, Decision on Prosecution Motion to Protect Victims and Witnesses, of 29 April 1998, available at http://www.un.org/icty/cases/indictindex-e.htm. However, in the Kordić case, in regard to a protected witness who was significant in the case, even the defense had a limited number of lawyers permitted at the hearing and authorised for questioning. See Prosecution against Kordić and Čerkez, IT-95-14/2, transcript of 26 July 1999, available at http://www.un.org/icty/cases/indictindex-e.htm, in regard to Mr. Kljuić who renounced his right to being a protected witness at the hearing. 182 See the decision in the case Prosecution against Tadić, IT-94-1-A-T, Decision on the Prosecutor’s Motion Requesting Measures for Victims and

Witnesses, of 10 August 1995, available at http://www.un.org/icty/tadic/trialc2/decision-e/100895pm.htm, Para. 23. «Threats, intimidation, violence, bribe and other methods of threatening, disrupting or obstructing justice represent a serious problem both for individual witnesses and for the ability of the Court to fulfil its tasks.» Prosecution against Brđanin and Talić, IT-99-36-PT, Decision on the Prosecutor’s Motion Requesting Protection Measures of 3 July 2000, available at http://www.un.org/icty/cases/indictindex-e.htm, Para. 9. 183 In the decision regarding the Tadić case, id. it was stressed that the verdict would to a large extent depend on the testimonies of eye-witnesses.

The same was stated for the case Brđanin, id., Par. 63. For more see Virginia Morris and Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia 242 (1994) 184 According to a table prepared by the Victims and Witnesses Section of 1 January 2002, different forms of protection measures have been applied

to 43% of the witnesses testifying before the ICTY, according to Patricia M. Wald, Note from the Field: Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal, 5 Yale H.R. & DEV. L.J. 217, 219 (2002). 185 In the Brđanin case the judicial chamber indicated, relying on Art. 20 of the ICTY Statute, that “its primary concern is the rights of the defendant,

and the need to protect victims and witnesses is secondary”. Prosecution against Brđanin and Talić, IT-99-36-PT, Decision upon the Prosecutor’s request for Protective Measures of 3 July 2000, available at http://www.un.org/icty/cases/indictindex-e.htm, Para. 20.

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All the legal systems of the European Union Member States provide police protection (monitoring, patrols), when necessary, to witnesses during an investigation or trial, around the clock if required. However, since this measure is quite expensive, it is only used in flagrant cases of intimidation. In a large number of legal systems, custody is used as a protective measure for victims/witnesses (Austria, Belgium, France, Germany, the Netherlands, Portugal, Spain). This protective measure is only used for serious criminal offences as a last resort, or when it is considered that other protective measures are insufficient. In England and Wales it is possible, as a preventive measure, to put the victim/ witness in custody in place of the defendant, provided the victim/witness consents to this. In England and Wales, Ireland and Scotland it is possible to deny bail, provided the victim/witness is in serious danger, and prohibiting influencing the witnesses is a standard requirement of bail. In some countries the victims are provided with a special means of protection, like in the Netherlands and Spain where domestic violence victims are given a personal alarm and in Sweden the police may supply the victim with a self-defence spray, cell phone, guard dog and the like. The most radical means of protection is the temporary or permanent relocation of the victim/witness to another part of the country or abroad. Most legal systems today stipulate this measure. Some limit its application only to victims/witnesses of organised crime or terrorism. The physical protection of victims/witnesses in court is also possible, by placing armed guards between the victim and the defendant, by holding the proceedings in a courtroom where the public is separated by bullet-proof glass, or by having separate waiting rooms for defendants and witnesses. The most efficient means of protection at the actual trial is to admit the statement given by the witness during the investigation, so that the witness does not need to be present in court – the use of such a testimony is customarily permitted on the condition that the defendant’s attorney was given the chance to question him/her during the investigation process (France, Italy, the Netherlands, Spain). Victims are furthermore protected by the non-disclosure of their personal information to the defendant, his/her address is not disclosed nor is the police station address indicated (England and Wales, Sweden). The most extreme protective measure is the right of the victim/witness to remain anonymous (anonymous witnesses are used in the Netherlands and Switzerland – Zurich canton). In order to deter the defendant from acting erroneously towards the victim, different precautionary measures are used that have a civilian or criminal character. For instance the non-molestation order, the occupation order or the restraining order are used. In England and Wales, in cases of domestic violence, these measures have a civil character and it is possible to order them regardless of whether criminal proceedings have been initiated. In other legal systems these measures have a criminal character and are ordered by the police (in Austria), by the state attorney (Norway and Sweden) or by the investigating judge (Belgium, France, Portugal, Spain). In some countries, like Norway, the court is required to subsequently confirm this order (within three days in Norway). In some legal systems like in England and Wales, Ireland, Austria, violation of these measures are considered a criminal offence punishable by a jail sentence or a fine. Furthermore in some legal systems it is possible, in addition to a suspended sentence, to order a restraining order (stipulated by all legal systems in the European Union) or a training programme of self-control or psychosocial help. One special protective measure is to criminalise the intimidation of a victim/witness. In some systems this is considered a special criminal offence (France, Spain, Scotland, Sweden, England and Wales) and in others this constitutes the criminal offence of threatening or results in a serious punishment for the actual crime the perpetrator is on trial for, during the course of which he intimidated the victim. The number of legal systems in Europe which inform the victim that the perpetrator has been released from custody, or jail, in order for the victim to adequately protect himself/herself, is still relatively small. In Denmark, for instance, the victim is informed if the defendant is released from custody during the appeal proceedings, in Sweden if the convict escaped from prison, and in Switzerland if the victim requested this information. In England and Wales the probation service must ask the victim if he/she wishes to receive information about the release of the perpetrator from prison, and must respect the victim’s decision. However, an obligation exists to inform the victims of rape and sexual assault attacks, as well as the family members of a murdered victim. There are also telephone numbers where victims can obtain information about the release of the perpetrator from prison.186

186 Data indicated in this chapter is taken from the book Brienen and Hoegen, supra note 58


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4.4.4. Protection of victims/witnesses in the Republic of Croatia The following regulations ensure the protection of victims/witnesses of criminal offences in the Republic of Croatia187:

1. The Police Act 1.

When justified reasons for this exist, the police have the obligation to administer appropriate measures to protect a victim or another person who has, or could provide, information significant for criminal proceedings, or a person in contact with the individuals in question, when they are threatened by the perpetrator or others (Art. 69). The Government of the Republic of Croatia prescribes, by a regulation, the types of measures and the procedure to be taken, for protecting victims of criminal offences and other people referred to in Article 69 of the Police Act (Art. 129). For this purpose, the Ordinance on the procedure for implementing protective measures put under police authority by the Domestic Violence Protection Act (OG 116/03) was adopted, and a Protocol on police actions in cases of domestic violence was prepared.188

2. The Criminal Procedure Act and the Minors Courts Act The CPA and the MCA stipulate a whole range of measures protecting the security and privacy of the private and family life of victims/witnesses, and which protect them from secondary victimisation within criminal proceedings: 1.

precautionary measures (Art. 90, para. 2, item 4 of the CPA),

2.

custody (Art. 105, para. 1, item 2 of the CPA),

3.

special means of questioning and participation of the witness in the proceedings (Art. 247, para. 2 and 3, Art. 248, para. 4-6, Art. 251, para. 4 and 6, Art. 252, Art. 254, para. 5, Art. 340, Para. 1 and 3, Art. 343, para. 2, Art. 346, para. 2-4, Art. 348, para. 1, item 1, Art. 353, Art. 355 of the CPA and Art. 37, 40 and 42 in relation to Art. 124, Art. 119 and 120 of the MCA

4.

limitation or exclusion of the public (Art. 310, items 3-5, Art. 316, para. 3 and 4 of the CPA; Art. 55 of the MCA)

5.

removal of the defendant from the courtroom (Art. 355 of the CPA),

6.

measures for maintaining order in the courtroom (Art. 309, para. 3, Art. 316, 317 and 318 of the CPA).

3. Criminal Code (CC) The Criminal Code determines individual criminal offences with the purpose of protecting victims/witnesses: a) obstruction of evidence (Art. 304 of the CC), b) violation of the proceedings’ confidentiality (Art. 305 of the CC), c) disclosure of a protected witness’s identity (Art. 305.a of the C), d) extortion of testimony (Art. 126 of the CC), and for the criminal offence of aggravated murder it envisages the murder of another person, in order to conceal another criminal offence, as a qualifying circumstance (Art. 91, item 5 of the CC).

4. Act on the Office for the Prevention of Corruption and Organised Crime (ZUSKOK Art. 29, 30) This Act regulates the conditions under which a person may become a repentant witness, and the status and questioning of a repentant witness (see Art. 21, 29 and 30 of the ZUSKOK in regards to Art. 185 of the CPA).

187 For details regarding the protection of physical integrity of victims/witnesses see Ksenija Turković, supra note 162; Ksenija Turković, Domestic

violence, analysis of criminal and misdemeanour legislation with proposals for amendments, http://www.mobms.hr/; Protecting witnesses of serious crime – Training manual for law enforcement and judiciary 145-158 (Council of Europe Publishing, 2006). 188 As proposed by Rec (2002) 5, Para. 58.c, the Protocol also prescribes action for health workers, social welfare centres, educational institutions and

judicial authorities in order for their actions to be uniform and coordinated. See Rec (2002) 5, Para. 27 and 58. c and e.

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5. The Witnesses Protection Act (WPA) This Act envisages measures for the protection of victims/witnesses outside of criminal proceedings (Art. 17, para. 1 of the WPA) as follows:

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1. physical and technical protection, 2. relocation, 3. concealing identity and property, 4. changing identity.

6. The Misdemeanour Act (MA) This Act contains fewer provisions for protecting victims/witnesses than the CPA. The MA prescribes precautionary measures (Art. 137-140 of the MA), arrest (Art. 145, para. 3 of the MA) and detention (Art. 146-147 of the MA) for misdemeanour offence perpetrators, and to a very limited extent the participation and questioning of witnesses in the proceedings (Art. 177, para. of the MA). The MA stipulates that, unless it contains provisions dealing with certain issues regarding the proceedings, the provisions of the CPA should apply accordingly (Art. 78, para. 2) and certain deficiencies in the MA are compensated by this.

7. The Domestic Violence Protection Act This Act stipulates that, for the purpose of protecting and securing a person exposed to violence, the competent court may issue an order to the police to accompany said person home, or to another place of residence, in order for them to collect certain documents, clothes, money and other objects necessary for their everyday life (Art. 10 of the draft proposal of amendments). Moreover, the court may order the following protective measures against a perpetrator of domestic violence, either separately or combined with other misdemeanour sanctions: a) removal from home or another place of residence, b) restraining order, c) prohibition of harassment or stalking the person exposed to violence, d) mandatory psychosocial treatment, e) mandatory therapy from addiction, f ) confiscating an object intended for, or used in, committing the misdemeanour offence.

This is a short, critical overview of the deficiencies in regulating the protection of victims/witnesses of criminal offences. Croatian criminal proceedings guarantee protection to victims only if they are witnesses, almost exclusively in order to secure their testimony and the unobstructed course of the criminal proceedings.189 It is therefore only a judicial instrument and ignores the intrinsic rights of an individual to safety, privacy or protection of dignity, which international and European documents normally refer to when stipulating the right of a victim to protection in criminal proceedings.190 The protection of victims/witnesses has not been sufficiently balanced with the rights of defendants to an equitable trial, the equality of weapons principle of both parties is not implemented enough, nor have the interests of the actual victim been given enough consideration. As such, this practice differs from the standards established by the Council of Europe and the European Union, as well as from the standards stipulated by the ICC Statute and Rules.

189 Exceptions are children and to an extent minors and victims/witnesses protected in accordance with the provisions of Art. 254, para. 5 of the CPA. 190 In regards to treating the rights of victims equally as the rights of defendants, an interesting reference is the article by Peter J. Schick, Protection of a criminal act victim as opposed to the protection of the rights of a defendant in criminal proceedings, 1 HLJKPP 379 (1994) – the original title of the article being “Opferschutzrechte als Schutzrechte des Beschhuldigten”.


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

Protection of victims in criminal proceedings in the RoC is deficient in several respects. Firstly, the group of people eligible to submit a request for victim/witness safety protection, does not encompassed enough people. According to ICC Rules, requests for protection may be directly submitted by both the prosecution and the defense, as well as by the victim or the witness concerned, their attorneys or by the court proprio motu.191 There is no difference between them in this respect. In Croatia a request for special measures to be taken to facilitate a victim’s or witness’s participation in criminal proceedings, or to include victims/witnesses into a special protection programme, may not be submitted by the victim, witness192, the defense193 or even the court.194 The right to submit this request is granted exclusively to the state attorney.195 The CPA does in fact provide a limited right to the investigating judge to initiate actions regarding the need for special methods of questioning, in which case he also has the right to control the decision of the state attorney.196 Whilst the Witnesses Protection Act grants the victims/witnesses and the judge, the right to submit a proposal to the state attorney for inclusion into the protection programme.197 The WPA does not, however, stipulate any control mechanism over the state attorney’s decision regarding such a proposal. If the state attorney does not act on the proposal, being of the opinion that he can ensure a statement is freely given by the witness in some other way, the victim/witness has no one else to turn to for his/her protection. Since the state attorney’s decision on the need to apply a special method of questioning and participation of a victim/witness in the proceedings is often not only the result of an assessment of the victim’s level of endangerment, but is also based on a range of other interests in the prosecution of a certain criminal offence, the needs of a victim/witness for safety may be of secondary importance. This is why the victim/witness should be provided with the right to submit a request for his/her own protection, regardless of the state attorney.198 Croatian criminal proceedings contain certain adverse elements, and the defense may wish to question certain victims. He/she should therefore be entitled to file a request for their protection, without involving the state attorney in this. It is easy to imagine a situation where the state attorney is less inclined to show concern for the protection of a “defense witness”. By denying the defense the right to directly and independently file a request for the protection of a victim/witness, the right to the equality of weapons for the defense has been violated. Secondly, neither the victim or witness, nor the defense, have the right to state their opinion or to lodge an objection against the protective measures proposed by the state attorney.199 This is a particular problem in cases where the investigating judge and the state attorney do not agree on the need to apply special questioning methods and the

191 Rule 87 (1) of the ICC Rules 192 A victim/witness may, only when he/she considers there is the likelihood that by testifying or answering a question he/she or a close person would

be exposed to serious danger to life, health, physical integrity, freedom or property on a larger scale, refuse to provide facts about his/her identity, or answer certain questions or entirely refuse to testify until his/her protection has been ensured (CPA, Art. 249, para. 1). When the investigating judge finds the request of the victim/witness justified, he/she will inform the state attorney about it (CPA, Art. 250, para. 1), or on the contrary, will request the victim to testify, and in case he/she does not consent to testifying the investigating judge may fine, subpoena or imprison the victim/witness (CPA, Art. 257). Thus, when the investigating judge finds there are no grounds to grant the request of a victim/witness, the victim/witness does not have a right to appeal nor any other options at his/her disposal to question this decision by the investigating judge. Another serious deficiency is that the CPA does not stipulate any obligation that the court or the investigating judge or the state attorney must inform the victim/witness of his/her rights. If victims/witnesses are unfamiliar with this right they are unable to exercise it, particularly since victims/witnesses usually do not have an attorney to inform them about this right. A victim/witness, when personally threatened, may request of the competent state attorney or the chief state attorney that they be included into a special protection programme outside of criminal proceedings (WPA, Art. 11, para. 1). 193 The defense may propose the questioning of a certain witness at the main hearing, and it is surprising that it does not have the right to file a motion with the judicial chamber to question her/him as a threatened witness. ICTY experience has shown that in war crimes proceedings and crimes against humanity, defense witnesses need safety protection almost as much as prosecution witnesses. It is hard to believe that the state attorney will always pay the same attention to the protection of defense witnesses as to the witnesses proposed by the prosecution. 194 The situation is different in regard to the protection of children or minors and other witnesses from secondary victimisation, and their privacy protection. Protection prescribed by the CPA for minors and children is mandatory – it must be implemented in all cases (CPA, Art. 248, para. 4 and 5).. The court may apply special questioning measures for other victims/witnesses at its own discretion by taking into consideration their age, mental and physical condition and other justified interests (CPA, Art. 247, para. 3, Art. 248, para. 6 and Art. 254, para 5). 195 The protection of threatened victims/witnesses by a special means of questioning witnesses and their participation in the proceedings are initiated at the request of the competent state attorney submitted proprio moto (CPA, Art. 251, para. 1 and 2) or a submission based on the initiative of the investigating judge upon the refusal of a victim/witness to testify on grounds of being threatened (CPA, Art. 249, para. 1). The procedure of including victims into the special protection programme outside of criminal proceedings is initiated upon motion of the chief public prosecutor, having received a submission about this from the competent public prosecutor or the threatened person (WPA, Art. 11, para. 1) or the judge (WPA, Art. 14). 196 CPA, Art. 250 197 WPA, Art. 11, para. 1 and Art. 14 198 Providing this right to a victim/witness is exceptionally important because not only does the victim/witness have no influence on the decision of

the judicial chamber regarding the application of protective measures in case of disagreement between the public prosecutor and the investigating judge, but he/she is also denied the right to appeal this decision of the judicial chamber. In other words, the decision on introducing protection measures is reached without any participation by the victim/witness whatsoever. Victims/witnesses do not even have the option of refusing to consent to the application of these measures as the law does not prescribe it. 199 This also refers to the motion of the public prosecutor regarding the application of a special means of questioning witnesses and their participation in the proceedings as prescribed by the CPA, and to the motion of including the victim/witness into a special protection programme outside of criminal proceedings according to the WPA.

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participation of a victim/witness in the proceedings200. Since, in such a case, the decision shall be reached by the county court chamber, consisting of three judges, neither the victim or witness nor the defense have the right to appeal the decision.201 The victim/witness cannot even refuse to consent to the special questioning method and participation in the proceedings, as his/her consent is not mandatory, according to provisions of the CPA.202 It is unacceptable to completely exclude the victim/witness or the defense203 from decision-making in regard to the application of special protective measures, since the measures applied may significantly influence the defendant’s rights in the proceedings. Additionally, failure to apply these measures may result in long-term consequences for the victim/witness and his/her family members.204 It is wrong to assume that interests and opinions regarding the need to protect the victim/witness and those of the state attorney necessarily overlap. This is why the right of the victim/witness, and of the defense, to react to the state attorney’s request for protective measures should be specified. Victims/witnesses, as well as the defense, should be given the right to appeal the decision on protective measures on a wider scale than that prescribed by the one case stipulated by the CPA. The consent of the witness should also be required in regard to protective measures applied within the proceedings, not only for protective measures outside of the proceedings. Thirdly, the legislator’s definition of the group of protected witnesses is too narrow. For instance both the CPA and the WPA envisage the protection of protected witnesses to include protecting the safety of victims when questioned as witnesses. However, no protection has been envisaged for victims who are injured parties or subsidiary prosecutors, unless they are also witnesses in the same proceedings. Both the CPA and the WPA should incorporate provisions which are not limited to witness protection, but also which protect victims (injured parties) and witnesses. Furthermore, in prescribing the protection of victims/witnesses the CPA omitted some exceptionally important categories, such as victims of sexual assault. The ICTY Rules (Rule 96) prescribes, among other things, that in cases of sexual assault no corroboration of the victim’s testimony is required. Consent is disallowed as a defense if the victim has been subjected to, or threatened with, or has had reason to fear violence, if they have suffered duress, detention or psychological oppression, or it is reasonably believed that if the victim had not submitted, another might be likewise subjected, threatened or put in fear. Moreover, the previous sexual conduct of the victim is not admissable. Croatian judges do seem to take this into consideration, although it has not been expressly prescribed by the law. Regulating this legally however, is recommended. Fourthly, is the issue of whether the criteria for determining a special questioning method and participation of the victim/witness in criminal proceedings, and their involvement into a special protection programme, have been formulated in enough detail.205

200 If the state attorney, within three days from receiving the notice from the investigating judge about the refusal of the victim/witness to testify and

the need to apply special means of questioning, does not propose such questioning or proposes that the victim/witness is questioned according to general rules (CPA, Art. 250, para. 2) or if the state attorney files a motion on his own for the application of special means of participation of a victim/ witness in the proceedings that the investigating judge disagrees with (CPA, Art. 251, para. 3). 201 Denying the right to file an appeal against the state attorney’s proposal is less of a problem in cases when the investigating judge accepts the

state attorney’s motion and determines the special means of questioning and participation of a victim/witness in the proceedings, as the parties and the victim/witness have the right to appeal this decision and may state their arguments regarding safety protection in the appeal (CPA, Art. 251, para. 4). 202 As opposed to the CPA, the WPA prescribes that consent of the person threatened is necessary for the application of the protection programme

and emergency protection measures (Art. 1, para. 2 and Art. 12, para. 2), or in case of a minor the consent of a parent or legal guardian, and in case of a person partially or entirely deprived of legal capacity, consent shall be obtained from the person who is the statutory representative of the threatened person or such person’s legal guardian (Art. 1, para 3). Nothing has been prescribed for individuals with mental disabilities incapable of making their own decisions who have not been deprived of their legal capacity. Should the procedure depriving them of their legal capacity be initiated first? According to the ICC Rules, whenever possible, consent should be obtained from the victim/witness in person regarding the application of protection measures (Rule 87 (1) of the ICC Rules). 203 There are two exceptions. Denying the right to file an appeal against a motion of the public state attorney is less of a problem in cases when the investigating judge accepts the state attorney’s motion and determines the special means of questioning and participation of a victim/witness in the proceedings, as the parties and the victim/witness then have the right to appeal this decision and may state their arguments regarding safety protection in the appeal (CPA, Art. 251, para. 4). The other exception refers to individuals with mental disabilities. 204 The ICC Rules prescribe, for instance, that both the prosecution and the defense as well as the victim/witness, depending on who filed the motion

for applying protection measures, have the right to respond to this motion. See Rule 87 (2). 205 According to the CPA the questioning method and participation of a witness in the proceedings may be ordered for victims/witnesses when they

qualify for the status of threatened victims/witnesses. The victim/witness is considered to be threatened when due to his/her testimony or answer to a particular question there is a serious danger to his/her life, health, physical integrity, freedom or property on a larger scale. Other victims/witnesses may be questioned by technical devices for the transfer of images and sound when the court determines this as necessary due to their age, physical and mental condition or other justified interests of the witness. In determining the criteria for including victims/witnesses into the special protection programme, the WPA is much more precise than the CPA. The WPA sets out four requirements which must be met cumulatively: a) the victim/witness must have the status of a threatened victim/witness, b) he/she must testify in the proceedings in relation to certain criminal offences, c) providing evidence for these acts would be exceptionally difficult or would be impossible by different means not including the threatened person’s testimony., and d) when there is no other way of ensuring the free testimony of the threatened victim/witness. In other words the protection programme according to the WPA has been prescribed only for key witnesses without whose testimony the procedure could not be completed. The person who would be threatened due to his/her testimony but is not a key witness, in other words without whose testimony there would be no case, cannot be called upon as a witness (WPA, Art. 11, para. 1).


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

Fifthly, it seems unacceptable that it is possible to apply the special questioning method and participation of victims/ witnesses in criminal proceedings, based on an agreement between the state attorney submitting the motion and the investigating judge,206 even when the parties have the right to appeal this decision,207 i.e. that the decision on including a threatened witness into the protection programme is reached by a Commission consisting of: a representative of the Supreme Court of the Republic of Croatia from among the judges; a representative of the State Attorney’s Office of the Republic of Croatia from among the deputies of the Chief State Attorney; a representative of the jail system administration of the ministry in charge of justice, a representative of the Ministry of the Interior, the Police Directorate and the Protection Unit director.208 There is a danger that neither the state attorney, along with the investigating judge, nor the Commission in this composition, are able to pay sufficient attention to balancing the special questioning method and the participation of victims/witnesses in the proceedings, with the defendant’s right to an equitable and impartial trial. A better solution would be for decisions regarding the application of such special protective measures for victims/witnesses to be reached by the judicial chamber.209 Sixthly, the anonymity of all threatened witnesses who are questioned by a special method and participate in criminal proceedings, not only in regard to the defendant and his attorney, but also to judges of the first instance chamber,210 represents a serious violation of the defendant’s rights to an equitable trial. According to the judicial practice of the European Court of Human Rights, courts must conduct a detailed and impartial analysis of the existence, and level, of the risk of threat to the prosecution witness’s safety, before granting him/her the status of an anonymous witness.211 Furthermore, anonymity can only be granted as a final means, when other protection mechanisms prove to be insufficient.212 The defense must be given the right to challenge the testimony of an anonymous witness with the intention of showing that it is not reliable.213 Finally, a verdict should never be based exclusively, or to a decisive degree, on the testimony of an anonymous witness.214 In the Blaškić case, ICTY took the position that a witness’s identity may be undisclosed to the defendant during the investigation, but must be revealed to the defendant early enough before the trial, so that he has time to prepare his defense.215 ICTY practice

206 If the investigating judge disagrees with the motion of the state attorney regarding the need for protection, the county court chamber consisting of three judges will make this decision, with no right to appeal (CPA, Art. 250, para. 2 and Art. 251, para. 3). 207 CPA, Art. 251, para. 4; The question is to which extent the parties and witnesses will use their right to appeal being due to reasons of not being familiar with criminal proceedings, and due to the lack of time and resources. 208 WPA, Art. 4, para. 1 and Art. 16, para. 1 209 At the ICTY, the decision on the protection of victims/witnesses is reached by an individual judge or the judicial chamber (Rule 75 (A) of the ICTY

Rules), and at ICC by the judicial chamber (Rule 87 (1) of the ICC Rules). In France the decision on protecting a witness’s identity is reached by the judge, see Art. 706-58 of the CCP. 210 Facts pertaining to victims/witnesses may exceptionally be requested from authorities conducting witness protection programmes and reviewed

only at courts of appeal when deciding on the appeal of a verdict. In this case a note should be made on the folder that it has been opened, and names of chamber members who are familiar with its contents indicated. Once chamber members have reviewed the contents, the folder should be resealed and returned to the authority conducting witness protection programmes (see CPA, Art. 251, para. 1). In the French criminal procedure, identification data of a protected witness is also classified and recorded in a separate file, kept separately from the case file, and the address is entered into a special register. See Art. 706-58 CCP. Special provisions, however, prescribe under which conditions these facts are available to the defendant and his attorney. See Art. 706-60. 211 Van Mechelen v. Netherlands, 25 EHRR 647, Para. 60-62 (1997); Visser v. The Netherlands, EHRR, Application no. 26668/95, Para. 47, (14 February 2002). 212 Van Mechelen, id., Para. 58 213 Doorsen v. Netherlands, 22EHRR 330, Para. 72, 75 (1996) 214 According to the judicial practice of the European Court for Human Rights the courts must analyse in detail and fairly the existence and level

of threat to the security of a prosecution witness prior to granting her/him the status of an anonymous witness. Van Mechelen, supra note 212, Para. 60-62; Visser, supra note 212. Furthermore, anonymity can be granted as the final means, when other protective measures have proven to be insufficient. Van Mechelen,supra, Para. 58. The Defense must have the option to challenge the testimony of an anonymous witness and question his/her reliability. Doorsen supra note 214, Para. 72, 75. Finally, the verdict cannot be based exclusively or to a decisive degree on the testimony of an anonymous witness. See Kostovski v. Netherlands, 12 EHRR 434, Para. 44 (1989); Windisch v. Austria 13 EHRR 281, Para. 28, 30 (1990); Ludi v. Switzerland, 15 EHRR 173 (1992); Saidi v. France 17 EHRR 251, 265 (1994); Doorsen v. Netherlands, supra, Par. 76; Visser, supra, Para. 50-51, Birutis v. Lithuania, Application nos. 47698/99 I 48115/99, Para. 29-31 (28. 3. 2002). Kostovski v. Netherlands; Windisch v. Austria; Ludi v. Switzerland; Saidi v. France; Doorsen v. Netherlands, Para. 76; Visser, Para. 50-51, Birutis v. Lithuania, Para. 29-31. The CPA explicitly prescribes (Art. 253) that the verdict and the ruling on unlawful evidence cannot be based solely on the testimony of a witness obtained by a special means of questioning and participation of a victim/witness in the proceedings, obtained as prescribed by CPA, Art. 249-252. 215 “The philosophy which imbues the Statute and the Rules of the Tribunal appears clear: the victims and witnesses merit protection, even from the

accused, during the preliminary proceedings and continuing until a reasonable time before the start of the trial itself; from that time forth, however, the right of the accused to an equitable trial must take precedence and requires that the veil of anonymity be lifted in his favour, even if the veil must continue to obstruct the view of the public and media. ... How can one conceive of the accused being afforded an equitable trial, adequate time for preparation of his defense, and intelligent cross-examination of the Prosecution witnesses if he does not know from where and by whom he is accused?” Prosecution against Blaškić, IT-95-14-T, Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses of 5 November 1996, Para. 24-25 quoted according to David Lusty, Anonymous Accusers: An Historical and Comparative Analyses of Secret Witnesses in Criminal Trials, 24 Sydney L. Rev. 361, 419 (2002).

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has since adopted this position.216 ICTR has never granted a witness the status of an anonymous witness.217 The ICC Statute has left this issue undefined to a degree,218 however the legislator’s intention is to support the position indicated in the Blaškić case and the present practice of ICTY.219

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Having taken all of the above into consideration, Art. 251, para. 6 of the CPA must be amended without delay, in the interest of ensuring an equitable trial and protecting defendants’ rights. The provisions of the CPA stipulating that a verdict cannot be based exclusively on the testimony of a witness obtained through questioning by a special method, do not grant sufficient protection.220 When anonymous testimonies are an option, very strict criteria must be established for them and they must only be used as a final resort. In the process of doing so, the defendant’s right to confront the person charging him must be taken into consideration, in order to ensure efficient cross-examination, to allow first instance judges to determine the reliability of a witness and to reduce the possibility of adopting a wrong verdict. Experience has shown that the defendant is not always a source of danger for a threatened witness. Should the need for anonymity be raised, it should be proven in a particular case, and evidence presented that the defendant represents a source of danger for the victim/witness.221 It is considered that systems with a victim/witness protection programme and the option of identity change do not need this measure. Moreover, anonymity as a rule is not an efficient means of protecting victims/witnesses from revenge.222 Anonymity should not be permitted in cases where the identity of a victim/witness is necessary for the defendant’s defense.223 Seventhly, the legislator has failed to introduce or develop certain protective measures. For instance, the CPA has not explicitly stipulated the exclusion of the public from the main hearing during the testimony of a threatened witness.224 The exclusion of the public should be a final option, when other means of protection are insufficient in the case of a key witness. The CPA does stipulate the precautionary measure of placing a restraining order on a particular person and prohibiting their contacting or maintaining contact with a certain person. However, this only lasts until the verdict is final.225 This measure is a significant contribution to the victim’s safety protection during criminal proceedings. However, victim protection in this sense should be extended after the final verdict has been reached, and prohibiting such contact should be included in the provisions on suspended sentences, probation, community service and parole. Victims should always be informed about the conditions of this prohibition and about what actions to take if the defendant or the convict violates them.

216 See for instance the decision in the Brđanin case, supra note 186 217 According to Kellye L. Fabian, Note and Comment: Proof and Consequences: An Analyses of the Tadić and Akayesu Trials, 49, DePaul l. Rev. 981

(2000) 218 Art. 68 of the ICC Statute mandates the Court to undertake appropriate witness protection measures, stating that these measures must be

in balance with the defendant’s right to an equitable trial. In accordance with Art. 68 (5) of the ICC Statute the prosecutor may refuse to provide information regarding the identity of a victim/witness to the defense before the commencement of trial if the disclosure of such information would threaten the safety of the victim/witness. 219 The Italian delegation had proposed a provision to be entered into the ICC Rules regarding anonymous testimonies being admissible, once an

independent authority has been appointed to review the reliability of a witness and to protect the defendant’s interests. ICC Document PCNICC/1999/ WGPRAVILA/DP.20 (1999). However, this proposal, following the proposal of the European Committee of Experts on Witness Intimidation and the Rights of the Defense (Recommendation No. R (97) 13, adopted by the Committee of Ministers of the Council of Europe on 10 September 1997, Para. 22) had been supported by only three other countries; according to Christopher Hall, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, 94 Am. J. of Int. L. 773, 824 (2000). One of the delegates at the conference in Rome emphasised the following: “Delegations agreed that in certain cases it would be appropriate for the Prosecutor to withhold evidence until the commencement of the trial on the grounds that disclosure could lead to grave endangerment to a witness. However upon the commencement of the trial it would not be appropriate ... In other words the Article does not permit the use of “anonymous witnesses”. The accused must be in a position to know his accusers.”; according to Helen Brady, Trials and Appeals Before the International Criminal Court, www.redcross.org.au. 220 CPA, Art. 253 221 All the absurdity of the provision guaranteeing anonymity to all threatened victims/witnesses would be even more evident if the defense would

also be granted the right to file a motion for the protection of witnesses whose questioning in trial it proposed. 222 The sense and effectiveness of anonymity as a means of protection is particularly questionable in the Croatian criminal system, as no provisions

exist prohibiting questions intended to reveal a victim’s identity. 223 See Art. 706-60 CCP; For detailed arguments about the (un)acceptability of anonymous testimonies see Turković, supra note 162. 224 The exclusion of the public from the main hearing could be classified, by applying a broad interpretation in such cases, as stipulated by the

provision prescribing the exclusion of the public for the purpose of protecting the personal or family life of the injured party (victim) or another participant in the proceedings (CPA, Art. 310, item 5). 225 CPA, Art. 90


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4.4.5. Survey results

Yes 4,6 %

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Image 21. Has anyone threatened the witnesses or endangered their safety in regard to their testimony in court

No 95,4 %

Of 130 respondents only 6 (4.6%) stated that someone had threatened them, or had endangered their safety in some way, in regard to their testimony in court (Image 21), (2 female, 4 male). None of these cases included a victim, all were witnesses, of which 4 were eye witnesses. However, 20 respondents (15.4%) felt the need for physical protection due to danger from others, and 17 of them (13.1%) for a special testifying method in order to protect their identity. See Image 22. 36 respondents (27.9%) stated that they needed protection in relation to their testifying, but that it had not been offered to them. Protection was offered to only two respondents, where one used it and the other did not. This leads to the conclusion that in a relatively large number of cases witnesses feel the need for protection, and it is not offered to them. This indicates that witnesses must be introduced to their right to protection, and provided with an active role in requesting this protection. In this sense the existing provisions about witness protection must be re-evaluated, as well as their application in practice.

Protection from contact with the defendant (separate waiting room, excluding the defendant from the public hearing during my testimony...)

36,9%

Privacy protection (protection from photographing, from the media, closed-door session etc.

18,5%

Protection of my physical safety due to danger from other persons

15,4%

Special means of testifying in order to protect my identity (with help of audiovisual means, under an assumed name...) Something else I did not need protection

13,1%

1,6%

44,6%

War crimes witnesses were worried about their safety prior to the trial and were afraid that their testifying could have threatening consequences for them and their families. However, witnesses from Croatia did not feel an actual or direct physical danger during any stage of the proceedings.226 The survey conducted among judges shows that they had frequently ordered custody due to collusion (see Image 24) (60.8% of them), and had also used custody as a means of protecting witnesses. There is a statistically significant difference in implementing custody as a protective measure for witnesses, between investigating and hearing judges; when ordered by an investigating judge, imprisonment serves to secure evidence, and not so much as a means of protecting a victim/witness. See Image 26. Other victim/witness protection measures at the disposal of

226 See chapter 6.1.

Image 22. Which kind of protection did the witnesses feel they needed


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judges are rarely or never used by them – and such measures have not taken root in the Croatian judicial practice. For instance, 35.2% of the judges who participated in the survey, have never applied the measures of a restraining order or prohibiting contact, or maintaining a relationship, with a certain person.

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Among the protective mechanisms at the disposal of judges, imprisonment has proven to be the most useful one – 87.9% of them consider this mechanism as useful or very useful. Along with imprisonment, questioning witnesses by technical devices for the transfer of images and sound has been rated as very useful. This is followed by the special means of questioning witnesses and their participation in the proceedings, as well as the measures for maintaining order in the courtroom (however, a significant statistical difference exists here between hearing judges and other judges). (see Images 25 and 27) All of this indicates the need to educate judges on the needs of victims/witnesses for protection and the mechanisms at their disposal for this. Judges are aware of this and 72% expressed a need for a systematic discussion about applying victim/witness support measures (see Image 28), and 91.3% consider that the existing professional training programmes about applying these measures are insufficient. Moreover, judges emphasize that the sessions of the judicial departments do not include sufficient discussion about the issue of applying support measures, that no clear instructions/guidelines on the application of the indicated support measures exist, and that the professional practice, professional information and reference literature is insufficient. See Image 29.

4.4.6. Recommendations 1) Protection and help to victims of criminal offences should not be limited to the criminal procedure alone, but should also be provided to victims prior to and after the criminal proceedings, or independent of the proceedings. Authorities as well as non-governmental organisations should participate in it. Since the nongovernmental sector is not developed in this segment in Croatia, priority should be given to the development of protection mechanisms through state authorities and providing support through competent nongovernmental organizations. 2) In addition to victims, witnesses and individuals close to them who are threatened, protection should also be provided to people who have reported a criminal offence, those working on the protection of victims/ witnesses and other threatened individuals. 3) The victims themselves should be involved in the decision-making procedure regarding their protection. 4) Protective measures and the manner of their implementation must be balanced with the defendant’s rights and the requirements of an equitable trial. 5) The confidentiality of all information related to the implementation of victims/witnesses protection measures must be determined and their disclosure forbidden. 6) The police should have the authority to implement protective measures in regard to the victim (providing items serving for protection like cell phones, security cameras or guard dogs, or should ensure protection by a police officer in person), regardless of whether the person has requested such help. The police should have the authority to assess which form of protection the victim needs. 7) The defendant should be physically separated from victims/witnesses and their families. Courts must be arranged so that the defendant does not share a waiting room with the victim/witness, seating in the courtroom must be arranged so that the victim or witness are not too close to the defendant, and possibilities separating the victim/witness from the defendant must be created (glass or bullet-proof partition etc.). 8) During the main hearing the victim’s address should not be disclosed. 9) Within the criminal and misdemeanour proceedings the following precautionary measures should be prescribed: the issue of restraining orders in regard to the victim, the prohibition of intimidating or following a victim, the prohibition of visiting certain places or leaving home, losing the right to live in the home, prohibition to carry and possess firearms, which may be ordered at the request of the victim alone, at the request of the state attorney or ex officio by the court, during the entire proceedings. 10) The range of precautionary measures stipulated by the Criminal Procedure Act should be expanded (the Domestic Violence Protection Act is a good example).


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11) As with the Domestic Violence Protection Act, the Criminal Code should prescribe the possibility of issuing a restraining order, prohibiting harassment of or stalking a victim, losing the right to live in the home, prohibiting visiting certain places, or the right to carry and possess firearms as a safety measure or a special sanction which could be ordered along with other sanctions (like a suspended sentence) or when granting parole.227 12) It should be prescribed that failure to comply with precautionary measures or protective measures constitutes a criminal offence or a misdemeanour offence.228 13) The group of people entitled to request safety protection should be expanded in the Criminal Procedure Act and the Witnesses Protection Act. 14) The victim/witness and the defense should be entitled to express their opinion or lodge an objection regarding the protective measures proposed by the state attorney. They should also be entitled to appeal a decision on protective measures on a wider scale than that prescribed in the Criminal Procedure Act. Furthermore, the consent of a witness should also be required in regard to protective measures applied within the proceedings and not only for protective measures outside of the proceedings. 15) Judicial chambers should reach decisions regarding the application of special protective measures for victims/ witnesses. 16) The provisions referring to anonymous witnesses should be prescribed in more detail and harmonised with the verdicts of the European Court of Human Rights. 17) Due to the introduction of cross-examination into our criminal proceedings,229 judicial chambers should be authorised to focus attention on the way victims and witnesses are questioned, in order to avoid their harassment and intimidation, particularly when questioning victims of sexual assault.230 18) A system of informing the victim of the perpetrator’s release from prison should be introduced. Information should be provided upon the request of the victim. 19) Systematic education of the police, state attorneys, attorneys and judges on the need and possibilities for protecting victims/witnesses must be further developed. 20) Victims and witnesses must be informed of their right to protection and the protection procedure. 21) Victims of domestic violence fall within the category of especially vulnerable victims and additional protective measures should be prescribed for them. (For instance, it is necessary to authorise the police to issue an immediate order to the perpetrator of violence, to leave the home and not to approach the home or the victim’s place of work and/or the victim within a certain distance, and not to contact the victim or harass the victim. It should be prescribed that should the perpetrator of violence need personal belongings, he can only return to collect them if accompanied by the police, etc.)

227 For more see the Spanish criminal Code or the Irish Non-Fatal Offences against the Person Act, no. 26/1997, Art. 10. (3). 228 Rec (2000) 5, par. 58. f. 229 See CPA, Art. 337, para. 4, Art. 343 and Art 351, para 2 230 For details see Rule 88 (5) of the ICC Rules

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4.5. Privacy protection of victims/witnesses

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In relation to protecting the privacy of victims/witnesses the following measures are usually encompassed: exclusion of the public from the main hearing and from the proceedings in general, limiting the disclosure of the identity of a victim/witness and media reporting on the victim/witness. The privacy protection of victims/witnesses has been inspired by the desire to protect them from secondary victimisation and to protect their privacy. Its other goal is to obtain the most credible testimony possible. Protecting the victim’s identity from the public is not a problem, as long as the public in general has not been excluded as a means of protection (in other words as long as the proceedings are not conducted in camera), or as long as the victim’s identity is disclosed to the defense in due time.

4.5.1. Privacy protection of victims/witnesses in international documents Numerous international documents insist on the protection of the privacy and identity of victims/witnesses.231 The personal information of victims must be archived and used in accordance with the conditions set out in the Convention for the protection of individuals, with regard to automatic processing of personal data (ETS no. 108).232 All services and organisations, governmental and non-governmental, in contact with victims, must adopt clear rules regulating the provision of information about the victim to a third person, by respecting the principle of proportionality. This information may be disclosed to a third person only if the victim explicitly consents to this, if a legal motion or authorization for disclosing information exists (for instance the police can disclose information about the victim for the purpose of conducting the investigation), or in case of an important ethical reason (when the life or safety of a person is in question).233 The procedure for lodging objections in case of non-compliance with these rules must be established.234 Countries must undertake measures to ensure that in the case of children, the identity, or details enabling the identification of a victim, are not broadcast by the media or in another manner except in special circumstances, such as cases of human trafficking in order to find family members or ensure the protection of the child’s interests.235 For the purpose of protecting the victims’ privacy, they and their families must be protected from being photographed.236 States should encourage the media to protect the private lives and victims’ identities by self-regulations or coregulations, in accordance with Art. 10 of the European Convention on Human Rights and the judicial practice of the European Court of Human Rights pertaining to this Article.237

4.5.2. Privacy protection of victims/witnesses at international criminal courts The ICTY Rules of Procedure and Evidence indicate that the judicial practice has developed a whole range of measures, which are at the disposal of the Tribunal, in order to protect the identity of victims, witnesses or individuals related to them from the public and the media, in order to guarantee their safety and privacy. As protective measures from the public, ICTY Rules stipulate the deletion of names and facts from the public documents of the Tribunal which could lead to the disclosure of the victim’s identity, the unavailability to the public of the documentation identifying

231 Art. 6 (d) of the UN Declaration on the Rights of Victims; Art. 11 of the European Convention Against Trafficking in Human Beings; Art. 15 of the

Recommendation no. R (85) 11; Art. VIII of the Guidelines on the Protection of Victims of Terrorist Acts; Art. 8, para. 1 of the Framework Decision on the Standing of Victims in Criminal Proceedings 232 Art. 11, para 1 of the European Convention Against Trafficking in Human Beings 233 Art. 9 of the recommendation no. R (87) 21; Art. 11 of the Annex to Recommendation (2006) 8; Within the Statement on Social Rights for Victims, available at http://www.euvictimservices.org/EFVSDocs/service_standard_rights.pdf additional useful information on the topic is available. 234 Id.; Art. VIII, Para. 3 of the Guidelines on the Protection of Victims of Terrorist Acts 235 Art. 11, para. 2 of the European Convention Against Trafficking in Human Beings 236 Art. 8, para. 2 of the Framework Decision on the Standing of Victims in Criminal Proceedings 237 Art. 11, para. 3 of the European Convention Against Trafficking in Human Beings; Art. VIII, para. 2 of the Guidelines on the Protection of Victims

of Terrorist Acts


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

the victim, ensuring testimonies are taken by distorting the image or voice or by closed-circuit television,238 and providing a pseudonym and the option of excluding the public from the main hearing.239 In practice, the separation of the courtroom from the public is possible by drawing blinds, prohibiting photography, audio or video recording, prohibiting the parties disclosure of the identity of a protected victim/witness in the proceedings, an order to the parties to have a list of all those to whom the confidential data has been disclosed and the dates of disclosure, and the prevention of photocopying documents containing confidential information and the obligation to return them.240 The same protective measures are envisaged by the ICC Rules (Art. 87 (3)).

4.5.3. Comparative experiences In a number of legal systems the court may order the exclusion of the public from a part of or the entire main hearing. Only a small number of countries explicitly stipulates by law the possibility of excluding the public from the main hearing for the purpose of protecting the privacy of a victim/witness (Belgium, Cyprus, the Netherlands). Portugal stipulates the protection of a victim’s dignity, Spain the protection of a witness and his/her family, and Switzerland the protection of the victim’s interests. However, even in systems which explicitly do not indicate the victim, and his/her privacy protection, as a reason for excluding the public from the main hearing, in practice judges frequently exclude the public from the main hearing precisely for those reasons. Some systems leave it to the discretion of the court to decide whether or not to exclude the public from the main hearing in a particular case (England and Wales, the Netherlands, Scotland, Greece etc.). In others the public must always be excluded in certain proceedings, like in cases of rape or incest (Ireland), in cases of serious sexual assault offences (Iceland), if the victim is a child (Italy), and in countries, if this is requested by the victim (in Denmark the public is excluded upon request of the victim in cases of incest, rape, or a serious sexual assault). Most legal systems limit the provision of information on the victims. In some systems the investigating procedure is typically based on the principle of confidentiality and the victim is protected from the public until the main hearing (Belgium, France, Portugal). In Portugal, for instance, during the investigation the identity of a victim of sex-related offences, or offences against their honour and reputation, cannot be disclosed if the victim is younger than 16. In Switzerland the identity of a rape victim may be disclosed only upon the victim’s consent, or when this is in the interest of the criminal proceedings concerned. Apart from these two permitted cases, if the identity of a victim is disclosed this constitutes the criminal offence of violating professional confidentiality. In England and Wales the identity of a victim of rape or sex-related attack cannot be disclosed. In some systems the victim is not required to state his/her address at the main hearing. Legal systems regulate a victim’s privacy protection in different ways in relation to media coverage. Some leave it to self-regulation by the media industry. The media itself adopts its own codes of conduct whereby it prohibits the publication of victims’ names without their consent or prohibits taking photographs at the main hearing (Iceland, Norway, Sweden). In some systems the court has the authority to determine the extent of media publication in a particular case (Belgium, Cyprus, Denmark, Malta, the Netherlands, Portugal). The authority of the courts in these systems differs significantly. While in Cyprus the court is authorised to prohibit the publication of the names of those involved in a case, exclude the media from the entire or a part of the main hearing, in Malta the court is authorised to determine the extent of publication in the media only in those proceedings where the public has been excluded. A number of systems offer special protection to certain categories of victim. In some systems unauthorised publication of a rape victim’s name constitutes a criminal offence (Belgium, Denmark, England and Wales, Iceland, Ireland, Scotland) and fines are imposed, and in Turkey it is punished by a jail sentence. Ireland went as far as to prescribe the publishing of rape victims’ facts as a criminal offence, even when the consent of the victim had been given, unless it was accompanied by special court permission. In Belgium, the publication of facts on sexual assault victims is possible only when this is in the interest of the investigation, and even then only with the consent of the investigating judge.

238 In the Tadić trial it has been decided that testifying can be conducted by a video link if the testimony of a certain witness is crucial, and it would be

unfair to continue the trial without this testimony, or when a witness in incapable of arriving at the Hague (Tadić, 25 June 1996; 11 October 1996; 16 October 1996; 17 October 1996). Testifying by a video link was also permitted in the Čelebići trial (28 May 1997) and the Dokmanović trial (11 March 1998; 22 May 1998). In the Čelebići trial the court denied the prosecution the right to testimony by video link, stating that no special circumstances existed to justify this means of testifying (11 November 1997). 239 Rule 75 (B) of the ICTY Rules 240 Prosecution against Blaškić, Decision of Trial Chamber I on the Requests of the Prosecutor of 12 and 14 1997 in respect of the Protection of

Witnesses, 6 June 1997, available at www.un.org/icty/cases/indictindex-e.htm.

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Television recording in the courtroom is prohibited in Austria, Cyprus and France. In most other systems it has been left to the discretion of the judge whether or not to permit recording in a particular case. In the Netherlands recording is possible only if identification of the victim and the perpetrator is impossible, and in Portugal recording the face and speech of a victim is prohibited.

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Photography and sound recording is prohibited in Austria, England and Wales, Cyprus, Denmark, France, Portugal and Scotland. The drawback of all these provisions is that it allows for the possibility of recording outside the courtroom. An exception is France where it is prohibited to record a victim at home or around the home. This shows that the approach to limiting the media in reporting on victims and their testimony differs significantly.241

4.5.4. Privacy protection of victims/witnesses in Croatian legislation An investigating judge, or a police official entrusted with a certain investigating action, can issue an order to individuals being questioned, or who are present during investigating actions or reviewing the investigation files, to consider certain facts or data that has been revealed to them, as confidential, and to warn them that the disclosure of this confidential information is a criminal offence. This only occurs if it is required for the progress of criminal proceedings, confidentiality, public order or moral reasons. This order will be registered in the minutes of the investigation, or will be recorded on the files reviewed, and signed by the person so warned (Art. 220 of the CPA). In order to protect the personal or family life of the defendant, the injured party or another participant in the proceedings, the chamber may, ex officio or upon motion of the parties, but always after their interrogation, exclude the public from the entire main hearing or part thereof. This can happen at any time, from the opening session until the closure of the main hearing, if necessary (Art. 310, items 3-5 of the CPA). Photography, filming, television or other recording with technical devices is prohibited in the courtroom. Exceptionally, the county court president may permit photography and the president of the Supreme Court of the Republic of Croatia may permit television or other recording at a certain main hearing. When recording is permitted, the chamber may decide at the main hearing to prohibit the recording of certain parts of the hearing. (Art. 316, para. 3 and 4 of the CPA). Without permission from the court, the course of criminal proceedings may not be published in the case of criminal offences against minors, referred to in Art. 117 of the MCA,242 nor the rulings reached in such proceedings (Art. 55, para. 1 and Art. 119 of the MCA). Only the part of the proceedings or the ruling for which consent has been obtained may be published, without mentioning the name of the minor and other facts that could lead to his/her identification (Art. 55, para. 2 and Art. 119 of the MCA). Facts gathered by technical devices for the transfer of images and sound shall be destroyed five years after the verdict has become final (Art. 119, para. 5 of the MCA). Violation of the confidentiality of proceedings constitutes a criminal offence, punishable by a fine or a jail sentence of up to 6 months (Art. 305 of the CC). The misdemeanour procedure also provides the option of excluding the public from the entire hearing, or part thereof, by a ruling, upon a motion by the defendant, the injured party, the party filing charges for the misdemeanour procedure or the state attorney, or ex officio, when the procedure involves a minor or discusses family relations. A special appeal is permitted against a ruling excluding the public, but it does not delay enforcement. In all other respects, the provisions of the CPA may apply (Art. 78, para. 2 of the MA). Since the MA refers to the provisions of the MCA only in relation to procedures conducted against minors, all provisions relating to the protection of minors as witnesses or injured parties (victims), prescribed by the MCA, should be envisaged by the MA alone or the subsidiary application of the MCA should be prescribed.

241 According to Brienen, Hoegen, supra note 58 242 Supra note 124


Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4

4.5.5. Survey results A relatively small number of respondents (6.2%) were afraid their case would be published in the media along with their name. Even so, 18.5% of respondents felt the need for privacy protection (protection from photographing, protection from the media, exclusion of the public from the main hearing, etc.), and 13.1% of the respondents indicated the need for a special method of testifying in order to protect their identity. Among the privacy protection measures for victims/witnesses, judges most often use the measure of excluding the public from the main hearing. Only 8.9% of the judges who participated in the survey have never applied this measure. Other measures which may serve to protect the privacy are rarely or almost never applied. See Image 24. For instance, the measure of keeping information on witnesses confidential was never applied by 47.3% of the judges, while limiting recordings at the main hearing was never applied by 64.5% of the judges surveyed. The usefulness of these three measures has been equally evaluated by the court. See Image 25.

4.5.6. Recommendations 1) Procedural rules should regulate the photographic recording of victims and their family members during criminal proceedings and the publication of their identification data in the media. 2) A victim’s address should never be stated at the main hearing, except when relevant for the proceedings.243 3) When questioning a threatened victim/witness, parties should be prohibited from asking questions intended to reveal the identity of such a witness, particularly since this may endanger the safety of this person. 4) Once the Victims and Witnesses Unit is established, it will be necessary to carefully prescribe data confidentiality and the safekeeping of confidential data. Employees of this Unit or those working for it should be made aware of the rules on data confidentiality in their line of duty, as well as to whom and under what conditions they may disclose such data.

243 As regards the protection of the confidentiality of the addresses of victims/witnesses see Art. 706-57 of the Code du Procedure Penale, http://admi.

net/code/index-CPROCPEL.html.

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Protecting the rights of victims/witnesses and provision of support: legal framework, opinions and experiences of victims/witnesses

4.6. Concluding remarks

88

Finally, we would like to provide advice on the basic conceptual principles which must be given special consideration in providing support, and in regulating and applying the rights of victims/witnesses. For further conclusions about the survey itself, please refer to Chapter 7. When introducing different victim rights into criminal proceedings, special attention must be given to balancing these rights with the defendant’s rights and the requirements of an equitable trial – the aim should be the creation of a system which will enable, to the highest extent possible, the simultaneous fulfilment of justice for the victim and equitable proceedings for the defendant – justice and fairness.244 Justice for the victim is accomplished not only by punishing the perpetrator, but also by helping the victim and rectifying the situation in which the victim has found herself/himself by the criminal offence. Victims must be treated as participants in the proceedings and their intrinsic rights ensured, and not just regarded as an instrument in the hands of justice. This is why providing help to victims cannot depend on whether the criminal offence perpetrator has been identified, arrested, tried or convicted.245 The right to protection, privacy and dignity must be secured for victims and other witnesses without discrimination, because this constitutes their natural rights, and should not be provided exclusively to the point necessary to ensure their testimony in a case. Naturally, victims/witnesses will cooperate better with penal authorities, if they trust the way in which the penal system functions. It is indicative that only 17.7% of the witnesses in the survey consider the Croatian penal system efficient in discovering and prosecuting perpetrators of criminal offences, that only 10.9% or 11.7% considered the Croatian penal system to entirely fulfil the needs of victims/witnesses, and that only 20.8% stated they would be happy to testify in other criminal proceedings as witnesses. See Image 23.

Under no circumstances would I want to testify again 10,0 %

Image23. Opinion of the witnesses about whether they would testify in court again

No, only if I had to 31,5 %

Yes, I would be happy to 20,8 %

Yes, but reluctantly 37,7 %

It is not enough to simply grant procedural rights to victims/witnesses on paper, all other necessary conditions must also be ensured which would enable the fulfilment of their rights in actual situations. The state itself should establish or should stimulate the establishment of state, private or non-governmental organisations for providing help to victims/witnesses of criminal offences. Certain categories of victim (victims of war crimes or terrorism, women victims of violence, children) are specific and need to be guaranteed some special rights, different from those guaranteed to victims of regular criminal offences.246 Finally, the state, having ratified the European Convention on the Compensation of Victims of Violent Crimes, drawn up by the Council of Europe, must organise a system of compensation for these victims.247

244 Justice in criminal proceedings is considered to have been achieved when the perpetrator has been sentenced according to his/her level of guilt.

Criminal proceedings are considered fair when conducted according to procedural rules regardless of the final outcome. 245 Recommendation Rec (2006) 8, Art. 2.3 246 Art. 2, para. 2 of the EU Framework Decision on the Standing of Victims in Criminal Proceedings of 15 March 2001 247 For details see recommendations after each chapter.


5

WITNESS SUPPORT – EXPERIENCES AND OPINIONS OF JUDGES HANDLING CRIMINAL CASES AT COUNTY COURTS


Witness support – experiences and opinions of judges handling criminal cases at county courts

5. Witness support – experiences and opinions of judges handling criminal cases at county courts In order to evaluate the current conditions and the need for a different approach and the implementation of witness support, a survey was conducted and data was gathered to create a basis for assessing the situation and evaluating the introduction of certain measures and procedures related to witnesses support. The survey encompassed judges and witnesses. In regard to judges’, the experience and opinions of county court judges regarding witness support248 in procedures for serious criminal offences involving violence was surveyed. The survey encompassed county court hearing judges handling criminal cases, investigating judges and other appellate criminal judges. Of the 117 completed questionnaires returned, 110 were included in the analysis,249 which represents about 1/3 of the judges working in the criminal branch of justice in the Republic of Croatia and more than 65% of the county court judges handling criminal cases. This number of judges surveyed represents an appropriate sample. More than 2/3 of the judges surveyed have extensive or very extensive professional experience as judges. Among the judges surveyed 40% have between 21 and 30 years of experience as judges. This is a highly respectable time during which a judge encounters a large number of situations and legal problems. This fact is essential for other answers obtained, which must be analysed and interpreted based on the experience of these respondents. It has been stated that all three branches of criminal justice have been encompassed by the survey. A widespread opinion is that in the criminal branch of the judicature, the task of a county court hearing judge is quite complex and demanding, due to the diversity of legal and factual problems and the situations in which they arise. Among those surveyed 43.6% have 20 or more years of experience as criminal judges. This fact shows that the experience of the judges surveyed is respectable. It should also be mentioned that among the judges surveyed 62.7% were male and the remainder female. This result is interesting since the gender structure in the judicature of the Republic of Croatia shows a higher number of women (63.49%).250 An almost reverse ratio of criminal judges may indicate that the gender structure of criminal judges shows mostly male judges in this judicial branch.

248 Support for witnesses is a group of procedures prescribed by law, the goal of which is to provide support and protection to witnesses in order to

reduce the witness’s feeling of being physically or psychologically threatened. 249 Seven respondents had more than 20% of questions unanswered, and were excluded from the analysis. 250 The fact refers to the year 2005. There were a total of 1,912 judges in the Republic of Croatia at the time, of which 1,214 women (at all courts: misdemeanour, municipal, county, commercial, Administrative Court and Supreme Court of the Republic of Croatia). Facts from the Central Bureau of Statistics, Statistic Annals of the Republic of Croatia 2006, pages 590-591.

5

91


5

Witness support – experiences and opinions of judges handling criminal cases at county courts

5.1. Opinions, experiences and needs of judges in applying legal support measures for witnesses 92

The survey results on the application of available legal measures are as follows:

1. Temporary removal of the defendant from the courtroom The general opinion is that this measure is rarely used in regular proceedings. Most of those surveyed consider this measure useful. Results show that judges, when using the measure, initiate it ex officio (43.4% of them), but also after they have been informed that circumstances exist making this measure necessary (34.3%). The measure was evaluated as useful by 90.7% of the judges surveyed. A third of those surveyed (34.6%) consider that the measure needs improvement, mostly by actions involving the witnesses as well (a special room, providing information to witnesses, video link). A negligible number of judges proposed prohibiting the defendant from directly questioning the witness, which is a contradictory issue in regard to the rights of defense.

2. Notice to the judicial police about the need for protection This is an especially rare measure (only 7.3% of those surveyed have applied it rarely; all others very rarely or never, and only 1.8% apply it often). Most consider it useful (92.7%), and it is most often ordered ex officio (39.2%) or when judges have been informed that it is needed (26.5%). A third of those surveyed (32.1%) consider the measure needs improvement, mostly by increasing the number of judicial police officers.

3. Confidentiality obligation regarding the witness This is another rarely applied measure, although more often than the previous one (71.8% of the judges have never or hardly ever applied this measure, and 15.5% of the judges apply it very rarely). Of those surveyed 90.9% consider the measure useful. Almost a third of the judges (30.9%) use it ex officio, and 29.9% once they were warned of the circumstances justifying its application. Only a fourth of the judges (24.5%) consider that the measure needs improvement.

4. Exclusion of the public from the main hearing In relation to other measures, the exclusion of the public from the main hearing is relatively often applied. A fifth of those surveyed (20.0%) use the measure often or very often, and 52.4% rarely. 92.6% of those surveyed consider the measure useful, somewhat useful or very useful, and 7.5% of those surveyed consider the measure to be of no use. More than half (55.9%) of those surveyed apply the measure ex officio, and more than a third (34.4%) once they were informed that circumstances existed making this measure necessary (exclusion of public is often ordered based on a motion by the parties in criminal proceedings). A vast majority of those surveyed (83%) do not consider that this measure needs improvement, which leads to the conclusion that the statutory solution is well developed and accepted in practice.

5. Limited recording of the main hearing This is a rarely used measure; three quarters of those surveyed (77.6%) have never or almost never applied this measure. Of those surveyed 85.6% consider the measure useful, somewhat useful or very useful. This evaluation is clearly based on both a theoretical and experience-based assessment, since most of those surveyed do not use the measure. Most of those surveyed (84.3%) do not consider that this measure needs improvement.


Witness support – experiences and opinions of judges handling criminal cases at county courts

5

6. Measures for maintaining order in the courtroom More than a quarter of the judges surveyed (26.9%) have never or hardly ever applied this measure, 27.8% apply it very rarely and more than one fifth (21.3%) never applied this measure. It is obvious that in most situations the measure is unnecessary. Almost all judges surveyed (99%) consider this measure as useful (only one of those surveyed stated the measure was “almost useless�). The measure is most frequently applied ex officio (58.3%) and 27.1% apply it once they have been informed about its application. Of the judges surveyed 82.0% consider that this measure does not need improvement, but these judges proposed the introduction of a jail sentence for contempt of court and to have judicial police officers present in courtrooms.

7. Questioning victims by technical devices for the transfer of images and sound This measure is relatively rarely applied, but most of the judges surveyed consider it useful (only 3.7% of the judges surveyed consider it almost useless). Among judges 42.7% have never applied this measure and a quarter (24.5%) consider it needs improvement (by ensuring better conditions and by simplifying the procedure).

8. Restraining order and prohibiting contact with or maintaining a relationship with a certain person/witness This measure is relatively rarely applied, but most of the judges surveyed consider it useful (only 9.3% of the judges surveyed consider it of no use). Most of the judges apply this measure once they have been informed that circumstances justifying its application exist (about 34.7% of those surveyed). Among the judges, 16.3% of them consider that circumstances for monitoring the implementation of this measure are non-existent, and almost a third (28.3%) consider that the measure needs improvement (by better control of its implementation).

9. Custody due to collusion This is the most frequently used measure. One half of those surveyed (50.5%) apply it often and 10.3% very often. Only 4.6% of those surveyed consider the measure as almost useless. Almost 57.7% of those surveyed use the measure following a motion, and more than a third (36.1%) ex officio. Among those surveyed 87.3% consider that the measure does not need improvement.

10. Special means of questioning and participation of the witness in the proceedings More than a half of those surveyed (55.6%) have never applied this measure, and a third (33.4%) have applied the measure rarely or almost never (yet another measure rarely used). Only 4.9% of those surveyed consider the measure of no use, and 20.6% consider it needs improvement.

Image 24, depicting the average application of measures, shows that ordering custody due to collusion, and exclusion of the public from the main hearing, are the most frequently applied measures. The most rarely applied measures include the special means of questioning and participation of the witnesses in the proceedings and limiting the recording of the main hearing (in practice, recording of a main hearing is typically not applied). Other measures are applied relatively infrequently.

93


5

Witness support – experiences and opinions of judges handling criminal cases at county courts

6 5,5 5 4,5 4

94

3,5 3 2,5 2 1,5 1 0,5 0

Image 24. Average frequency of applying statutory witness support measures251

1

2

3

4

5

6

7

8

9

10

Those surveyed have evaluated ordering custody due to collusion and questioning a witness by a video link as the most useful measures. The least useful measure is the measure limiting the recording of the main hearing (it should be re-stated, that, in practice, recording of a main hearing is typically rare).

Image 25.Average rating of the usefulness of legal witness support measures 252

5 4,5 4 3,5 3 2,5 2 1,5 1 0,5 0 1

2

3

4

5

6

7

251 Key:

axis x - measures: 1. Temporary removal of the defendant from the courtroom 2. Notice to the judicial police about the need for protection 3. Confidentiality obligation regarding the witness 4. Exclusion of the public from the main hearing 5. Limited recording of the main hearing 6. Measures for maintaining order in the courtroom 7. Questioning victims by technical devices for the transfer of images and sound 8. Restraining order and prohibiting contact or maintaining a relationship with a certain person/witness 9. Custody due to collusion 10. Special means of questioning and participation of the witness in the proceedings axis y – frequency of applying measures (1 – “never”; 6 – “very frequently”) 252 Key:

axis x - measures: 1. Temporary removal of the defendant from the courtroom 2. Notice to the judicial police about the need for protection 3. Confidentiality obligation regarding the witness 4. Exclusion of the public from the main hearing 5. Limited recording of the main hearing 6. Measures for maintaining order in the courtroom 7. Questioning victims by technical devices for the transfer of images and sound 8. Restraining order and prohibiting contact or maintaining a relationship with a certain person/witness 9. Custody due to collusion 10. Special means of questioning and participation of the witness in the proceedings axis y – usefulness of measures (1 – “completely useless”; 5 – “very useful”)

8

9

10


Witness support – experiences and opinions of judges handling criminal cases at county courts

5

6 5

95

4 3 2 1 0 1

2

3

4

5

6

7

8

9

10

Image 26. Difference regarding the functions of judges for question of frequency of applying statutory witness support measures

Investigating judges Hearing judges Appellate judge Judges who are both investigating and hearing/investigating and appellate/all 3 functions Hearing/Appellate judges * For key see footnote 251.

Image 27. Witnesses’ opinion on whether the questions they were asked at court were necessary for the criminal procedure concerned

5

4

3 2

1 0 1

2

3

4

5

6

7

8

9

10

Investigating judges Hearing judges Appellate judge Judges who are both investigating and hearing/investigating and appellate/all 3 functions Hearing/Appellate judges * For key see footnote 252.

There is no statistically significant difference in the frequency of the application of the mentioned measures, neither in relation to the size of the court nor in relation to the gender of those surveyed. A statistically significant difference has been noted only in regard to the function of judges in relation to the measure “custody due to collusion” and “exclusion of the public from the main hearing”. The measure “custody due to collusion” is significantly applied less by hearing judges than by investigating and appellate judges, while the measure of “exclusion of the public from the main hearing” is statistically significantly applied less by investigating judges than by hearing judges. The measure of “custody due to collusion” is applied more by investigating judges since, according to judicial practice, the reason for collusion (influencing witnesses during investigation) can only exist, by its nature, during investigation, and no longer applies after the indictment has been issued. Reasons for collusion rarely exist during the main hearing. In practice, custody is more frequently ordered during investigation, and not at the main hearing. The existence of custody is reviewed, ex officio, by an extra-judicial chamber following indictment.


5

Witness support – experiences and opinions of judges handling criminal cases at county courts

In regard to the measure of “exclusion of the public from the main hearing”, investigating judges do not preside over the main hearing, and it is clear that investigating actions (questioning witnesses) are typically conducted without the presence of the public.

96

There are no statistically significant differences in estimating the usefulness of these measures in regard to gender. In relation to the functions of judges, there is a statistically significant difference in how the usefulness of the measure “notice to judicial police” and “maintaining order in the courtroom” is evaluated. Hearing judges have evaluated the usefulness of the measure “notice to judicial police” as statistically significantly less useful than appellate judges; the measure of “order in the courtroom” has been evaluated by hearing judges as statistically significantly less useful than by appellate judges. In regard to the size of the court, a statistically significant difference has been noted in the evaluation of the usefulness of the measure of “maintaining order in the courtroom”, which has been estimated by judges at smaller courts as less useful than by judges at larger courts.

5.2. Needs of judges for additional information and training in the field of witness support Almost two thirds of judges (72%) consider that a systematic discussion about the application of witness support measures is necessary. Statistically significant differences have not been noted in the need for the provision of professional information about support (protection) measures, neither in regard to the size of the court where the judge works, nor in regard to the judge’s function. However, the fact that two thirds feel the need for a systematic discussion about support (protection) measures undoubtedly indicates the need for professional training in this field. Image 28. Judges’ needs for professional information on the application of statutory support measures

No, there is no need for additional clarification regarding the application of regulations. 23,4 %

Yes, the need exists for the clarification of applying certain measures 4,7 %

Image 29. Do you have access to enough professional information to help you in applying regulations about the indicated support (protective) measures

100 % 90 % 80 % 70 % 60 %

57,1%

64,4%

Yes, a comprehensive discussion regarding the application of support measures is necessary 72,0 %

54,8%

58,7%

91,3%

73,8%

No

50 % 40 % 30 % 20 % 10 % 0%

Yes

42,9%

35,6%

45,2%

41,3%

26,2% 8,7%

1

2

3

4

5

6

Key: 1. Do you have access to enough professional information to help you in interpreting the application of regulations about the indicated support measures? 2. Do clear instructions/guidelines exist on how to apply regulations regarding the said support measures? 3. Is professional literature covering the mentioned support measures available? 4. Is judicial practice regarding the application of support measures available? 5. Are the programmes of professional training regarding the application of support measures sufficient? 6. Is the issue of applying support measures discussed enough at judicial department sessions?


Witness support – experiences and opinions of judges handling criminal cases at county courts

Only 14.5% of the judges are sufficiently informed about the ways of reducing the witness’s feeling of being threatened, and almost one third have no information about it at all. Others are partially informed. These facts are clear indicators of at least two things. First, there is a need for professional training in this field, and second there is a need for a service which would deal with the witness’s psychological feeling of being threatened before giving testimony in court. There is no statistically significant difference in the level of information available, on the methods of reducing the witness’s psychological feeling of being threatened, with respect to the size of the court.

5

97 Image 30. How well are the judges informed about the ways of reducing the witness’s psychological feeling of being threatened

Sufficently 14,5 %

I have not been informed 30,9 %

Partially 54,5 %

Two thirds of the respondents consider that the existence of professional training on the protection of the rights of victims/witnesses is necessary. This fact confirms the impression indicated by answers to a number of previous questions. Judges of different ages do not show significant differences in relation to whether courses should be organised, within the scope of on-going training for judges, about the protection of victims/witnesses rights.

Image 31. Judges’ opinions on the need to organise professional training programmes for judges regarding the protection of victims/witnesses rights

No 23,9 %

Yes 76,1 %

The following are the reasons indicated by the judges as to why there is a need to organise professional training for judges regarding the protection of victims/witnesses rights: -

because witness protection is a relatively new issue about which we need to learn more (22),

-

for the purpose of a higher quality trial and better witness protection (24),

-

for the purpose of uniform application of regulations and their better understanding (19).

The following are the reasons indicated by judges for why there is no need to organise professional training regarding the protection of victims/witnesses rights: -

there is enough information about it,

-

because it is sufficiently encompassed by the on-going training,

-

because all options have been envisaged by the CPA,

-

because this problem is infrequent,

-

what matters is to ensure technical preconditions,

-

this should be ensured by special services and non-governmental organisations,

-

a special service has been established for this within the Ministry of Justice.


5

Witness support – experiences and opinions of judges handling criminal cases at county courts

5.3. Judges’ opinions and experiences regarding the witnesses’ psychological feeling of being threatened 98

When asked whether they have noticed the witness’s psychological feeling of being threatened, 81.8% of the judges responded with “yes”. This is very interesting when compared to the general impression that available witness support measures are not used. No statistically significant differences have been noted between judges from larger and smaller courts, and no statistically significant differences were seen in regard to the gender and years of experience as a judge. No 18,2 %

Image 32. How many judges answered that they noticed witnesses’ psychological feeling of being threatened prior to, during and after testifying

Yes 81,8 %

Among the 88 judges who answered this question, 88.6% themselves noticed the witness’s feeling of being threatened. More than 1/3 of the judges stated that they were informed about this by the witness in person, or those close to the witness. Among judges, 48.9% only circled the answer that they, themselves, noticed the witness’s feeling of being threatened. This fact indicates that witnesses obviously need psychological support. Image 33. How did the judges usually notice the witnesses’ psychological feeling of being threatened

100 % 90 % 80 % 70 % 60 % 50 % 40 % 30 % 20 % 10 % 0%

88,6%

37,5% 20,5%

I noticed it myself

I was warned about it by the witness or a person close to him

I was warned about it by the injured party’s attorney

13,6%

13,6%

12,5%

I was warned about it by the attorney before the testimony

I was warned about it by the public prosecutor

Based on minutes of the investigating judge

The judges most frequently noticed the witness’s psychological feeling of being threatened during questioning (81.8%). This leads to the conclusion that witnesses did not get an opportunity to communicate their fear to someone. It is possible that earlier action by the appropriate service would surely have reduced the witnesses feeling this way during testimony.

Image34. When were the judges most frequently told or have noticed the witness’s feeling of being threatened?

After the testimony Before the testimony 18,2 %

0,0 %

During the testimony 81,8 %


Witness support – experiences and opinions of judges handling criminal cases at county courts

Results show that judges try to resolve the witness’s psychological feeling of being threatened mostly by talking to them (speaking, explaining, motivating them).253 When they try to resolve this problem by applying measures, judges most frequently apply the temporary removal of the defendant from the courtroom (36.0%), the exclusion of the public (21.3%) and measures for maintaining order in the courtroom (10.1%). Other measures have rarely been applied by judges, and it is interesting that none of the respondents said they had not reacted in this situation.

100 % 90 % 80 % 70 % 60 %

59,6%

50 % 40 %

40,4% 24,7%

30 % 20 % 10 % 0%

15,7% 12,4%

7,9%

3,4%

2,2%

6

7

8

9

0,0%

2

3

4

5

10

Key 1. I have explained to the witness in the courtroom that there is nothing to be afraid of 2. I have explained to the witness that it is clear to everyone that testifying is a burden and that reliving the entire event is a negative experience, but that we needed his/her help to establish significant circumstances 3. I have applied some of the measures prescribed by law (see the following graph) 3.1. Restraining order against the defendant, 3.2. Exclusion of the public, 3.3. Measures for maintaining order in the courtroom, 3.4. Article 338 of the CPA – 1, 3.5. Article 293 of the CPA - 1, 3.6. Witness interrogation by technical instruments for the transfer of imagesand sound – 1, 3.7. Warning to the defendant – 1, 3.8. Custody of the defendant – 1. 4. I have motivated the witness by emphasizing the importance of their testimony 5. I have asked for professional help at court, and this person talked to the witness before the testimony 6. I spoke to the witness outside of the courtroom and explained to him/her the role of a witness and the procedure preceding the testimony 7. I have referred to professionals/organisations outside of the court for help, who have provided help to the witness 8. Something else: postponing the hearing (stated next to answers in items 5 and 8 of the questionnaire) (1); I have tried to “release” the witness from tension with the way I asked questions (1); I have changed the seating arrangement (1) 9. Someone else spoke to the witness outside of the courtroom and explained to him/her the role of a witness and the procedure preceding the testimony, or someone else had explained to the witness in the courtroom that he/she has nothing to be afraid of (psychologist, psychiatrist -1 service for the protection of protected witnesses -1) 10. I did not react

40 %

36,0 %

35 % 30 % 25 %

21,3 %

20 % 15 % 10,1 %

10 % 5%

1,1 %

1,1 %

1,1 %

1,1 %

1,1 %

3.4

3.5

3.6

3.7

3.8

0% 3.1

99 Image 35. How did judges usually react to the witness’s psychological feeling of being threatened

78,7%

1

5

3.2

3.3

253 77% of the judges explained to the witness that there is nothing to be afraid about, and 60% explained to the witness that it is clear that testifying is a burden and that re-living the entire event is a negative experience, but that his/her help was needed in establishing significant circumstances.


5

Witness support – experiences and opinions of judges handling criminal cases at county courts

5.4. Opinions, needs and experiences of judges about organisations and witness support services 100 Image 36. How many judges had sufficient information about organisations and professionals from the territory of their court’s jurisdiction to whom to refer for help regarding the provision of witness support

68.2% of the judges stated that they have no information about organisations and professionals within the territory of their court’s jurisdiction to whom they can refer for help regarding the provision of witness support. This information is not important 2,7 %

Yes 29,1 % I do not have this information although it is important 68,2 %

Over 80% of the judges surveyed consider that preparation of a witness for testimony to be necessary, without discussing the contents of testimony. This data almost entirely corresponds to the fact that 82.4% of the judges noticed the witness’s psychological feeling of being threatened during their testimony. Both facts confirm the existence of the witness’s psychological feeling of being threatened and, combined with other facts, clearly show the need for different treatment of witnesses needing support before their testimonies in court.

Image 37. Do the judges consider it necessary to prepare the witness for testifying without discussing the contents of testimony

This would only be useful for witnesses for whom ocumentation exists indicating that the support is needed 40,9 %

Yes, this would be useful for every witness 40,9 %

Mostly no, this occurs so rarely that such support is neither justified nor necessary 14,5 %

No, because such situations do not exist 3,6 %

Almost three quarters of the judges (70%) consider that a special service in court should provide witness support. In addition to other advantages of such services (to be specified later), it would significantly facilitate the questioning of witnesses and relieve judges of the burden of a responsibility for which they have not been trained (provision of psychological help).


Witness support – experiences and opinions of judges handling criminal cases at county courts

A special professional service in court in which a jurist and/or special education professional and/or psychologist and/or social worker would be present

70,0 %

26,4 %

The judge in charge of interrogation personally

101

19,1 %

Non-governmental organisations dealing with support to witnesses A service within the Ministry of Justice which would send a professional to court when necessary

11,8 %

The party proposing the interrogation of witnesses with or without supervision by a special professional service at the court or the Ministry of Justice

5,5 %

2,7 %

This kind of support is not necessary

Someone else

5

0,0 %

0%

10 %

20 %

30 %

40 %

50 %

60 %

70 %

80 %

90 % 100 %

Image 38.Judges’ opinions about who should provide witness support

Most of the judges recognise positive feelings in witnesses. Only 10.2% of those surveyed rarely noticed these feelings (because the procedure is demanding), and less than 5% of the judges consider it is only important for the witness to fulfil his/her duty. The challenges of the proceedings could be facilitated by professional training, but also by the existence of a special witness support service in court. Furthermore, 12.7% of the judges consider that there is no need to thank the witness for his/her testimony, because it is their duty. This lack of empathy may be a result of the non-existence of professional training about the importance of the relationship between a judge and individuals in the courtroom (particularly the witness). However, most of the judges (61.8%) often thank the witness, as it is important for the witness to have the feeling that he/she has helped. More than half of the judges (58.3%) consider that witness support and protection should be improved, and most of them think professional (psychological) help and preparation would be best to achieve this improvement. There is no statistically significant difference between judges with different functions in relation to whether witness support and protection should be improved.

100 %

No 41,7 %

90 % 80 % 70 %

Yes 58,3 %

60 %

55 and over

50 %

45 - 54

40 %

35 - 44

30 % 20 % 10 % 0%

No

Yes

Judges of different ages differ significantly statistically in opinions on whether it is necessary to improve the support and protection of witnesses. Younger judges (35 – 44) often consider this improvement to be necessary, whilst older ones (55 and over) usually consider it unnecessary. This may be indication of less experience in the younger judges, but the medium group must be analysed too, since judges between 45 and 54 years old cannot be described a inexperienced. In this category, more than 50% of those surveyed, consider that witness support and protection needs improvement. This fact may be more a sign of a conservative approach among judges, which is common, and frequently beneficial. To provide better witness support, 81.3 % of those surveyed consider the court should provide a separate waiting room for witnesses, and 68.2% think a special service to provide witness support is necessary. Among judges, 61.7% consider the court should have technical devices for questioning witnesses by the transfer of images and sound (video link), but only 28.0% think the courtrooms should be rearranged to improve witness support.

Image 39. many judges find it necessary to improve witness support and protection?


5

Witness support – experiences and opinions of judges handling criminal cases at county courts

100 % 90 %

81,3%

80 % 68,2%

70 %

102

61,7%

60 % 50 % 40 %

28,0%

30 % 20 % 10 %

1,9%

0%

Image 40. Judges’ opinions about what each court should have for better witness support

A separate waiting room for witnesses

A special service/ person to help the witnesses

Technical instruments for interrogating the witness by transfer of images and sound

A special arrangement of the courtroom

Something else

*Something else: when necessary separate rooms should be provided for certain categories of witnesses who may have conflicting interests due to their emotional involvement

It is interesting that 5.5% of those surveyed consider that the witness should have the right to veto certain decisions made by the state attorney. In general, such a large percentage is surprising, in regard to legal history and culture, as well as to current regulations. This also applies to the fact that a victim should have the right to file an appeal in regard to all legal grounds (16.4%). More than 60% of those surveyed consider that every injured party should have the right to free legal help (when unable to pay for these expenses on his/her own).254 The largest number those surveyed think that injured parties should have the right to psychological and emotional support and help (82.7%).

5.5. Conclusion The results of the survey show that the witness support system needs improvement. This does not refer as much to the legal regulations pertaining to witness protection, but more to the treatment of witnesses from the time the event (criminal offence) occurs, until the completion of the criminal proceedings. The main conclusion of the survey is that the existing system does not provide sufficient witness support to witnesses who are victims, or eye-witnesses, of serious criminal offences, mainly those involving violence. Judges often notice that witnesses feel psychologically threatened and try to manage this through the existing institutional framework, and with providing actual support during questioning. Results however, particularly the results of the witnesses surveyed, indicate that this is insufficient. Witnesses indicate the need for support to exist, and feel that currently no support is available. Although judges try to resolve the witness’s psychological feelings of being threatened, insufficient training in the field and witnesses’ answers indicate that an institutional service is necessary. This is why a unit, department or section for providing witness support should be set up, organised and equipped at each court or each larger court (definitely each county court). This unit would provide all the help necessary for providing support for witnesses who do not require protection according to the Witness Protection Act. A judicial counsellor, psychologist and administrator would create a sufficient basis for such unit to begin its operation, which could then expand if necessary. The court would need to employ one person (psychologist) in this case. A judicial counsellor and an administrator are already employed in courts. However, witness support is not important only to witnesses, but also to courts which, due to their position and role in the society, need to provide security and a feeling of safety to witnesses, as well as contribute to criminal proceedings as an important factor in the implementation of rights and the achievement of a legally functioning state. The efficient and appropriate operation of an independent and impartial judicial power is one of the main goals of constitutional democracy and contributes to the achievement of order, safety, freedom and general wellbeing. This goal may only be reached by a judicial system that guarantees witnesses their rights and provides them with security and the feeling of safety, as well as indicating their importance in exercising their civic duty. This is 254 The actual possibility of introducing this solution fundamentally conflicts as it would raise the cost of already expensive judicial proceedings.


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particularly important if we bear in mind that in contemporary criminal proceedings, despite significant progress in technology in assisting in the discovery and proving of the most serious criminal offences, a witness still remains the most important asset for providing evidence, without which proving the occurrence of serious criminal offences is often extremely difficult. Another conclusion of the survey is that there is a lack of professional training in the field of witnesses support and protection. Judges are unfamiliar with not only the techniques of providing support, but also with the existing institutions which could provide such support. In addition to their existing everyday work-load and their need to understand the techniques and skills of providing psychological support to witnesses, judges should not be responsible for providing this kind of support themselves. This responsiblity diminishes their capacities for work in criminal proceedings and probably results in unnecessarily lengthy proceedings. This is why the only logical solution for meeting the need for witness support is the existence of a special service in court. The survey results may be summarised as follows: 1. Witnesses (victims and eyewitnesses) of serious criminal offences do not receive sufficient psychological support in regard to their testifying in criminal proceedings. They are not familiar enough with their rights and obligations. 2. The existing legislative and institutional framework and procedural practice in criminal cases indicate the existence of adequate witness protection. 3. There is an obvious deficiency in the institutional framework, which should provide support (psychological and other) to witnesses in criminal proceedings regardless of whether they are victims or eyewitnesses of serious criminal offences. 4. The best solution for such support is the establishment of a special department (section) at court, adequately furnished and equipped to provide witnesses support (separate room, pedagogue/psychologist, administrator). 5. Ongoing professional training of judges (state attorneys and police officers as well) in this field is sine qua non of efficient and effective witness support.

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EXPERIENCES OF WAR CRIMES VICTIMS – SURVEY RESULTS


Experiences of war crimes victims – survey results

6. Experiences of war crimes victims – survey results Interviews with 14 interviewees who testified in war crimes proceedings, indicated that this was an exceptionally difficult experience for almost all witnesses, especially for those who were direct victims. Interviewers did not ask about the event itself or the criminal proceedings where the interviewee testified, but focused on the experiences of the witnesses in any of the situations they encountered, after being recognised as potential witnesses. This included their interpretation of actions of certain state authorities (police, state attorney’s office and court) and the defendant’s attorney, as well as their perception of being threatened (physically or psychologically) during the entire proceedings. Witnesses also stated their opinions and proposals about what would facilitate their testifying, which would in turn indirectly contribute to the efficiency of judicial proceedings. The analysis conducted was organised into sections relating to the crucial topics determined by the aim of the survey.

6.1. Witnesses’ feeling of being physically threatened Most witnesses from Croatia stated they did not feel an actual and direct physical danger during any stage of the proceedings and during their role as a witness. In other words, they were not threatened or exposed to threatening gestures or offensive remarks. However, witnesses who came to testify from Bosnia-Herzegovina stated they had received death threats should they testify, and some were offered money in return for refusing to testify. These witnesses took the threats very seriously and were scared when they came to Croatia to testify. A witness who came from Serbia to testify was not threatened by anyone (nor as far as he knows were other witnesses who travelled and testified with him). Only in one case was the witness directly, verbally attacked by the defendant during his/her testimony in front of the investigating judge. In this particular case the witness was prepared for such a possibility and it did not influence his/her feeling of not being threatened in court. Almost all witnesses who testified in cases where the defendants were Croatian, stated they were afraid for their safety before coming to court, and a small number of them thought their testimony may have threatening consequences for them and their families. Although most of these witnesses did not receive actual threats, their worry was mainly because they felt that others (like neighbours, acquaintances, relatives and friends) were of the opinion that they should not have testified, and so they had possibly exposed themselves and their families to threats. However, these witnesses felt it was not possible to organise their efficient protection before the trial or after it in the places where they live. They would have felt safer if a police patrol had been driving by or had been present more often in their towns or neighbourhoods. In this case direct police protection was not expected, just a police presence in the community where the witnesses of war crimes lived, and for which the state would have shown discreet and systematic care about the safety of witnesses in important court proceedings. Some of the interviewees (slightly more than half ) were given some form of physical protection when arriving at court. Opinions about the usefulness of such protection differ. Witnesses who did not have police protection considered that it had not been necessary, which confirmed the court assessment that protection in such cases was unnecessary was well founded. Among those who had protection, about half think it had helped them psychologically - this primarily refers to witnesses who would arrive at the hearing from Bosnia-Herzegovina and from Serbia. They stressed that they would be ready to testify again in the same or other proceedings due to the well-organised protection. However, some of the victims who live in Croatia and had protection, consider it to have been unnecessary, because the danger for them and their families did not start or end with their testimonies. These witnesses are convinced that their safety is relative, and that if a supporter or a family member of the defendant decides to harm them or their families in any way, no one would be able to prevent it.

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This feeling of insecurity strongly affects some of the witnesses, especially those of Serbian ethnicity, and this reduces their willingness to testify.

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In the period preceding the main hearing, police actions in relation to witnesses have proven to be crucial in providing them with a feeling of safety. In cases where the police did provide protection, this referred to transport to court and back home, and witnesses were satisfied with the actions and treatment of the police. They have particularly emphasized that the police had acted professionally and responsibly, and did not initiate a discussion regarding the contents of the trial. Most of the interviewees did not have any negative remarks in regard to the police, the state attorney’s office or the investigating judge. On the contrary, when witnesses had contact with these state authorities (which happened in about two thirds of the cases) they indicated that they had been treated professionally. These witnesses have confirmed they felt no fear, insecurity or received inappropriate treatment in these contacts. However, witnesses arriving to testify from Bosnia-Herzegovina have had partially negative experiences. They were provided with police escort and protection while travelling and during the one day spent at court. They felt additional trust and safety due to the fact that they were escorted by an officer of the Bosnia and Herzegovina security service, and that at the border they were met and escorted from there, in addition to police officers, by an officer of the security service of the Republic of Croatia. This process has shown, according to testimonies of these witnesses, that Croatian state authorities are very interested in the professional and efficient prosecution of war crimes. However, these witnesses had a particularly negative experience while waiting at the hearing to testify. While they commended the younger police officers who were protecting them, they were exposed to insults and provocations by their superior, an older police officer. This happened immediately before the testimony in a room where they were separated from other witnesses. These witnesses were also afraid while driving through the city, since pedestrians and other drivers could see them through the windows of the van they were in, and they were afraid someone would shoot them while they stopped at intersections. They would have felt much safer had the vehicle had darkened windows. They have stated that at the same time the police security provided was very professional. This leads to the conclusion that these interviewees felt relatively safe, and have emphasized that they are ready to come and testify again, especially if their suggestions regarding the security of transport are taken into consideration. They have particularly stressed that they believe their experience will stimulate other witnesses to be more willing to testify. A witness who arrived at the trial from Serbia (along with another seven witnesses) specially emphasized the professional treatment given by police security during the entire trip, arrival and stay at court. He and the other witnesses from this group found it very important that they were able to take a walk in town, accompanied by security. He felt additionally safe by the fact that, along with Croatian police officers, their security included the police officers who had escorted the group from Serbia.

6.2. Witnesses’ feeling of being psychologically threatened In regard to the feeling of being psychologically threatened, the testimony was an exceptionally unpleasant and disturbing experience for almost all witnesses, although they were not afraid that something bad would happen to them during trial. For about a third of the interviewees the level of discomfort was so high that they stated they would not testify again, or would try to avoid testifying in every possible way. In these cases it is obvious that witnesses have experienced a level of feeling psychologically threatened and distressed during the trial, which is more intense than the usual anxiety of a witness when participating in criminal proceedings. These are examples of re-traumatisation, which occurs with people who have survived exceptionally traumatizing experiences, when the very reminder of the event (which inevitably happens before and during testimony) leads to their re-living the entire event, and is accompanied by very strong and disturbing feelings, powerful thoughts and very vivid images of the event. Since these witnesses re-live the event that had threatened their life very vividly in their minds, it is understandable that they try to avoid such extremely negative experiences, which would affect them again during a possible future testimony. This is an acute, post-traumatic stress reaction, which is so psychologically threatening that it causes renewed suffering, which these witnesses would try to avoid in the future at any cost. Since most of them share their experiences with acquaintances who may be future witnesses, it is understandable that such a negative experience may have a discouraging effect on future witnesses. Tendencies to avoid such painful experiences are a normal human reaction, and must be taken into consideration in order to reduce the psychological suffering of witnesses and victims in particularly serious criminal proceedings, and increase their readiness to contribute to an effective trial.


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A significant number of witnesses stated that they experienced exceptional anxiety upon receiving the summons to the court hearing, manifested by disturbing sleep for days before coming to court, by intense vivid memories regarding the war-related event and by fearing the encounter with the defendant in court. After returning home, similar and more intense feelings and images haunted them for days, and they felt very stressed. Anxiety due to re-living the traumatic experiences was particularly expressed during, and several days after, testifying. Victims/witnesses felt particularly stressed for a long time after the trial, because the defense had questioned the reliability of their traumatic experience. Consequences lasted for days and weeks, and most of the witnesses confirmed that this experience was exceptionally unpleasant and discouraged them from participating in this or another similar trial. These findings conform to the scientific facts that trauma victims have a very strong need to confirm (verify) their traumatic experience, and become aggressive or depressed when they are put in a situation where their veracity and suffering are questioned. This feeling of being deeply hurt surpasses the level of distrust of their testimonies, and in similar cases where traumatic suffering has not been recognized, such people may be also prone to suicidal behaviour. Almost none of the witnesses received any kind of psychological support prior to, during or after the testimony. An exception is about one fifth of the interviewees, who were in contact with non-governmental organisations for human rights protection, who observed trials regarding war crimes. Having contact with these organisations has proven critical for some of the witnesses who subsequently stopped avoiding court summons to testify. Support mainly focused on convincing them that their individual testimony is important in order to punish war criminals and that they would not be alone in the court-room, that members of this organisation would be with them, but also warned them that they would probably be exposed to an unpleasant experience. However, not even this kind of preparation included an explanation of the main hearing procedure, roles of certain procedural participants and their possible behaviour, particularly the actions and motivation of the defense in regard to questioning the witness, nor of other actual aspects of the hearing which would facilitate the witnesses’ role during their testimonies. In addition these witnesses did not receive psychological support in the period either prior to the trial, at the court itself before testifying or once they had testified. Foreign experience and professional literature indicate that psychological support helps people prepare, to a large extent, for the exceptionally unpleasant and threatening experiences they may have at court (like re-living their traumatic experience when testifying), helps them feel stronger and calmer when testifying in court, and shows that after their testimony such support is very helpful for their easier and faster return to their normal emotional and physical condition. (Home Office, 2001) This survey has thus shown that neither prior to, nor after testifying, had any witness been offered the possibility of discussing their concern about the upcoming or recent testimony, nor were they prepared for the disturbing consequences of court summons or testifying. Furthermore, no one was at hand for the witnesses after testifying to help them understand their role in the proceedings and their contribution to establishing the truth, or to help them stabilise their turbulent, traumatic memories. Since this was an exceptionally uncomfortable experience for most of the interviewees, they have stated that they would try to avoid testifying in court again, at any cost. In short, the witnesses have, for the most part (with one exception), felt psychologically threatened and about a third of them feared for their safety. With the exception of one case, no one was threatened. Except in this one case, all state authorities treated witnesses of war crimes professionally, regardless of their ethnicity.

6.3. Aspects which make testifying for witnesses more difficult In addition to experiencing re-traumatisation prior to and during their testimonies, other sources of strong discomfort for witnesses were primarily connected to their not being prepared for the circumstances of the proceedings, their encounter with the defendant and their treatment by the defense. Almost all witnesses found that being completely unprepared for and not knowing the course of proceedings in the main hearing, including not understanding the roles of some participants in the procedure, was highly stressful, threatening and confusing. For most of the witnesses of war crimes this was the first time they had ever been in a courtroom, and they felt exceptionally exposed, confused, insecure and for the most part scared of an unknown situation. Since they were exceptionally disturbed by traumatic experiences at the same time, it is understandable that they felt incompetent as witnesses and worried that they could not remember details of the crime they were testifying about. It is very indicative that about one quarter of the witnesses did not understand who had what role among the participants of the proceedings. With the exception of the presiding judge, they did not distinguish between representatives of the prosecution, defense or judicial chamber. Two of the witnesses were of the opinion that the people asking them questions during the hearing were journalists.

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Some of the anxiety was due to witnesses not understanding their own roles in the whole process of producing evidence. Most of the interviewees questioned themselves after giving testimony, about whether their participation was worthwhile in the process of establishing the facts and truth, and were confused because they were unsure of whether they had contributed to this or not. Most of the witnesses were very anxious and did not understand the insistence for numerous details during questioning. Repeated questions about where the witness was located during the incriminating event, about the colour or type of clothes being worn by the defendant or details on the defendant’s clothes, and about the distance between those involved in the event, had confused them. They did not see a point to them or had interpreted these questions as directed against them or their credibility. Most of the interviewees stated having felt like they were on trial during their testimonies, which was a humiliating experience in the context of their role as a victim/witness. Not being prepared for the course of the main hearing had, for witnesses, included not being prepared for the participation of the public, particularly the relatives and friends of the defendant and the press. A significant number of witnesses had the feeling of being completely alone in the courtroom and that everyone was against them. It must be stressed that literally all interviewees have stated they were satisfied with the way the judicial chamber conducted the main hearing. It was very important for them when the presiding judge would protect them, by warning the defense or the prosecution to stop repeatedly asking the same questions which the witness had already answered, as mentioned above. Professional treatment by the judge was noted by the interviewees when he/she would interrupt or overrule the defendant’s questions to the witness, which the witnesses described as provocative and humiliating questions, or when the judge would warn participants in the process to stop talking among themselves. Such interventions were highly appreciated by witnesses, who perceived this as professional and human treatment of them by the presiding judge. Sometimes the witnesses had to wait for a long time to be called in to testify. In a few cases this lasted for more than 6 hours, during which time they could not leave the court and were often hungry. The wait was demotivating and witnesses had become physically indisposed (hungry, thirsty) and considered their role to be much less significant than expected since they had to wait this long to testify. In two cases victims/witnesses had encountered the defendant in the hallway, in front of the courtroom, while waiting for the hearing to begin, as well as defense witnesses and their families. The fact that the defendant addressed them directly was perceived as unacceptable, and considered to be provocative behaviour. This was a particularly unpleasant experience for them, as well as when defense witnesses and their families initiated a conversation with them, while waiting in the same place for the hearing to begin or to testify. Some witnesses felt very exposed by this and interpreted it less as a failure of organisation but more as a possibility contributing to intimidation of the witness and a sign that the court was biased in favour of the defendant. As a form of support in some other judicial systems (for instance in Great Britain), witnesses not only wait for the call to join the hearing in a separate room, but they can also wait outside the court building, from where they are called by cell phone or paged to attend the hearing (Home Office, 1998). In almost half of the cases interviewees stated their distrust in a fair trial. It is interesting that this was felt by witnesses who participated in proceedings against defendants of both Croatian or Serbian ethnicity. Their opinion was that certain aspects of how they were treated in court, and with which they were dissatisfied, actually show an a priori partiality in favour of the defendant, all for the purpose of certain political interests. In general, witnesses felt much better when they did not feel left by themselves. This occurred in situations when a representative of a human rights organisation was present in the courtroom, with whom they had had previous contact, and when they felt the presiding judge would protect them if the defendant’s and the defense team’s treatment of them became rude and provocative. A particularly aggravating aspect of their testimony, indicated by all victims/witnesses who had testified at the main hearing, was the fact that they were confronted with the defendant in the courtroom. This was an exceptionally unpleasant experience and the main reason for their distress and discouragement. The fact that a traumatised victim encounters the defendant for the first time since the traumatic event (and considers this person to have committed a crime against him/her) and is unprepared for it, has the effect of severe re-traumatisation. This incident distressed victims/witnesses to such an extent that their cognitive functioning was affected (they had more difficulty remembering the details of the event, difficulty expressing themselves, could not concentrate), which increased their anxiety due to the significance of this moment. Another aspect which greatly disturbs witnesses of war crimes, is that the defendant is seated behind their backs during testimony, and they are unable to see him when testifying. They are very disturbed by the fact that the defendant is physically very close, which they practically see as a psychological threat. Most of the victims/witnesses were moreover very intimidated by the fact that the defendant was entitled to ask them questions “behind their backs”, and the way these questions were asked was sometimes interpreted as a provocation and belittlement of


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their suffering. For similar reasons (like being observed by a public who support the defendant), it was recommended to the British justice system that the courts look into the possibility of changing the assigned seat for the witness in some situations, so that the witness is less exposed (Home Office, 1998). A third aspect which significantly discourages witnesses, is not being prepared for the way in which they are treated by the defense. The defense’s treatment of witnesses and its manner of asking questions, particularly by insisting on the witness remembering details (time, colour of clothes, place where those present were located) results in the witness feeling incompetent. When witnesses are unprepared and do not understand the role and function of the defense, they do not comprehend how anyone may expect a witness to remember such detail 16 years after the event, which was in itself very threatening and violent. The fourth aggravating aspect which occurred with some witnesses, was that they had to travel far to get to court. Some of the witnesses claim they would leave home at three in the morning to be in court on time. They would wait for several hours to testify in court, and would return home very late. Since some of these witnesses were older, this became a huge obstacle to overcome in order to participate in the trial. Furthermore, some witnesses had incurred extra costs not covered by the daily expense allowance, as they had to ensure help from others for their livestock while they attended the trial. Since they had no income, the amount of 500 kunas (which they indicate they had to pay someone to feed the cattle and take care of it for the day) was a very large amount for them. The fact that witnesses arriving from the same place exchanged experiences about the treatment they received in court has significant implications. It is interesting that none of the interviewees mentioned (not even after a direct question about it by the interviewer) that they exchanged experiences about the facts they had stated in court. Their exchange of experience refered to the way certain state authorities and participants in the process had treated them. This is why the experiences of witnesses who felt they received protection from the presiding judge in cases of inappropriate questioning, has a significant influence on the future conduct of other witnesses.

6.4. Experience and significance of testifying for witnesses All interviewees were highly aware of their own responsibility in determining the truth and punishing the perpetrators of war crimes. Being aware of the obligation to respond to the court summons was their primary motivation to testify. That was accompanied by a feeling of responsibility to contribute to determining the truth about war crimes. A number of witnesses stated they decided to testify not only due to the official court summons, but also due to a feeling of responsibility to help determine the truth about war crimes and their obligation for the killed and tortured people they knew. This information corresponds to other surveys of war crimes witnesses (e.g. Stover, 2005; Kiza et al., 2006). It must be emphasized that witnesses from Bosnia-Herzegovina and Serbia were tremendously influenced by what they saw at the first trial for the “Lora” case. In their opinion the way that the judge handled the hearing (disregarding applause from the public to the defendants, and comments yelled at witnesses and the like) completely discouraged them from testifying in Croatia. Only after persistent contact by the judicial authorities of the Republic of Croatia and the provision of guarantees that the witnesses would be properly protected (and in apparent cooperation with state authorities from BH and Serbia) did these witnesses agree to testify. However, the negative impression they had preceeding the trial, contributed to their fear and uncertainty, and their hesitation until the actual testimony. A feeling of responsibility and awareness of the importance of the process affected most of them and made them feel anxious for days prior to testifying, from the moment they received the summons. This was particularly present in the elderly witnesses and those with lower educational degrees, who were unsure whether they would be able to speak properly in court and were afraid they would do something wrong or inappropriate. About a half of the interviewees consider their testimony to have been useful in determining the truth, and that they contributed at least a little to justice. This feeling of participating in a significant determination of the truth was a strong and fulfilling motive for them. The other half of the interviewees, following their experience in court, doubted that their testimony made sense, explaining that they distrusted the court’s impartiality, because the court had permitted a very aggressive defense. However, in cases where the presiding judge, in the witness’s opinion, warned the participants of the proceedings about their behaviour and maintained order in the courtroom, the witnesses felt the judge was impartial and competent. About a half of the witnesses left the court very confused by their role, feeling they were not given an opportunity to say important things because no one asked them about that, or the judge did not allow them to speak about their experience which they considered to be important for obtaining the truth and justice.

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This must be taken into consideration because traumatized individuals feel they are not understood by people who did not endure a similar experience, that others explicitly or implicitly question their suffering, which is why they need to express it. Psychologically it is very important for them to have others believe that the event did in fact occur. This kind of verification by others (particularly those with formal authority like the judicial chamber) plays a very significant role in their recovery from trauma. The survey results have indicated that almost all witnesses would agree to testify again due to the importance of determining the truth and punishing the criminals. However, in the process of doing so they would want certain things reorganised (like help in understanding the course of proceedings, for the defendant to be physically further away from them, to wait for the hearing in another room, etc.) and they believe this would help them to deal with the re-traumatisation they would experience by testifying.

6.5. Opinions about the importance of psychological witness support and proposals All interviewees agreed that an appropriate form of witnesses support is very important, that it would alleviate their anxiety in giving testimony, and that they would more readily respond to court summons and testify if they had the appropriate support. Of the various forms of support and better organisational conditions, the most frequently indicated were the following: -

Readiness to testify once someone had explained the course of proceedings to them in detail, described the roles of the participants in the process, warned them about possible unpleasant situations and, if possible, actually shown them the courtroom and where the participants sit during the hearing;

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Assistance in understanding their role as witnesses, especially due to their concern that they would not be capable of answering the questions asked or of describing an event; some interviewees stated that help from an attorney would be particularly important in this;

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Understanding the roles and tasks of certain participants in the process, especially the defense and the methods used for questioning witnesses, and the fact that the judge would protect them if the defense became aggressive or provocative;

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Being prepared for feelings of anxiety and re-living traumatic experiences, and professional help in analysing traumatic thoughts, memories and feelings after testifying;

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Assistance in facilitating their arrival at court, particularly for the elderly witnesses and those with lower education living in remote villages; reimbursement of specific expenses, which occur in certain situations, in addition to the travel expenses and the daily expense allowance;

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In cases where police protection is provided, for it to be organised so that pedestrians and drivers cannot see inside the vehicle transporting witnesses;

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To provide the option for extremely traumatized victims/witnesses of giving their statements by video link. When this is not possible, for the defendant to be seated where the witness can see him and not behind his/her back, and as far away as possible in the room;

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To provide the option for witnesses who are waiting to testify, to sit in an area where they cannot encounter or come into contact with the defendants, their witnesses, relatives or friends;

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Organisation of the course of proceedings so that witnesses do not wait for hours to testify, and to ensure food and drink are available to them while they wait.

Interviewees did not have a clear opinion about who should be in charge of organizing the provision of psychological help. Most of them thought this should be the court’s responsibility, and some mentioned the Ministry of Justice. Furthermore, all agreed that the support should be provided by professionals (in the field of mental health), in relation to which psychologists and psychiatrists were mentioned the most. About two thirds of the interviewees consider that providing this type of help directly must be left to non-governmental organisations with qualified professional staff.


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Literally, all witnesses were convinced that ensuring this type of support for witnesses would significantly assist them and other witnesses in testifying, would reduce anxiety and fear, and would help them to feel competent as witnesses. They also felt this would help them to respond to the court summons more easily, and that this would influence the will of other, future witnesses to respond and contribute to the efficiency of war crimes proceedings.

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6.6. Conclusions and recommendations Testifying in court is not a common experience for most people, and often causes a certain level of discomfort. However, a number of aspects in criminal proceedings for war crimes make the situation for victims/witnesses particularly difficult. One of them is the exceptional interest of the public in the testimony of a certain witness, a witness’s feeling that most members of the public do not approve of his or her participation in the proceedings in the role of a witness, the social pressure of their immediate environment to not testify or adapt his/her testimony to group interests, the fear of the consequences of testifying, not knowing what exactly is expected of them, and particularly re-traumatisation due to recounting a detailed memory of a traumatic experience related to a committed crime. The analyses of the interviews conducted with war crimes witnesses clearly indicate that they are afraid for themselves and those close to them, that they are exposed to the serious social pressure of their environment, and that they try to avoid testifying. In this, the fear of family members plays a significant role. On the other hand, they are motivated to testify by their civic duty and the feeling of responsibility to contribute to determining the truth and punishing war criminals. Witnesses find situations where they directly encounter the defendant to be exceptionally hard, and interpret any actions by his relatives or friends as veiled threats and pressure. They find it unbearable to have the defendant physically close to them, and courtrooms where war crimes are processed should be arranged so that the defendant is as far as possible from the witnesses, and definitely not seated behind them. They consider the actions of the police, prosecution and judges as professional but not supportive. In cases when the police provide protection to witnesses when arriving at court and leaving it, this must be organised so that witnesses cannot be seen inside the vehicle. Those in charge of organising protection must ensure that witnesses are treated in a way that makes them feel safe, and must prevent any possibility of a security officer provoking or questioning witnesses about themselves in any way. The positive experience witnesses from Bosnia-Herzegovina and Serbia had in regard to protection, will contribute to the readiness of other witnesses to testify in such cases. Not being familiar with the course of criminal proceedings, the role of certain participants in the process and the entire situation in court, creates high anxiety and distress for witnesses. This is why it is essential to prepare witnesses by explaining the roles of the participants in the proceedings, the course of the proceedings and their own roles. Foreign experience shows that a combination of oral instructions, or a description of the course of the hearing and providing a brochure with appropriate schemes illustrating the proceedings and the roles of the main participants in them, is very useful. A video presentation of the course of the proceedings with explanations would also be useful. Some witnesses believe their being summoned to court as witnesses did not primarily serve the purpose of determining the truth and serving justice, but was motivated by formal reasons, and they consider that state attorneys and judges do not ask questions which lead to determining the truth, insisting instead on irrelevant details, which the witnesses interpret as partiality in favour of the defendant. This is why the preparation of witnesses must focus special attention on their understanding of their role as witnesses during a hearing. In order to obtain high quality testimonies and improve support for witnesses, a special room must be organised for witnesses, where the defendant, witnesses of the other party, relatives or friends of the defendant will not be able to contact or harass them. The actions of the presiding judge are crucial for the witnesses to perceive the court as impartial. When witnesses believe that the presiding judge will protect them, should the prosecution or the defense needlessly and repeatedly question them about details, or will prevent provoking of the witness, they feel that their testimony makes a difference and contributes to justice. Psychological support to highly traumatized victims/witnesses is necessary prior to trial. The best time to begin providing this support is when the person has been identified as a witness, then after he/she receives the summons and immediately before testifying in the hearing. It is necessary to provide support to witnesses after testifying so that they can overcome the re-traumatisation, which testifying represents to them, as quickly as possible and without consequences. Support and preparation for testifying by becoming familiar with the course of proceedings will help the witnesses, particularly victims/witnesses to provide quality evidence and will reduce their re-traumatisation due to their participation in the proceedings.


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Therefore, witness support must be ensured for the following: 1. In the period from when the person has been recognized as a witness until he/she has been summoned to court, in regard to preparations for giving any testimony (e.g. to the state attorney or the investigating judge);

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2. After receiving the summons, up to testifying in court, which includes the period immediately prior to going to court; 3. During the stay at court; 4. Immediately after completing the testimony, and according to the needs of witnesses thereafter as well, including for up to a few months after testifying.

Support must, amongst other things, encompass the following: 1. Detecting witnesses to whom support is probably necessary due to their character or experiences, since they are hypersensitive (e.g. victims of crimes, traumatized people, the elderly, the uneducated, frightened or threatened individuals); 2. Provision of information and teaching about the procedures of government authorities which precede the main hearing at the hearing concerned, including an explanation of the participants’ roles in the hearing and the course of the actual hearing; 3. Understanding the concerns and needs, including the fears, of witnesses, which may influence witnesses during proceedings; 4. Provision of emotional support prior to, during and after testifying. In some cases, following an intense crossexamination, psychological crisis intervention may be necessary; 5. Escorting a witness to the hearing and to other procedural actions; 6. Contact and connections with the witness’s family and friends; 7. Connections with services in the local community which the witness might need (health care, social welfare, legal advice); 8. Connections with services for mental health in the local community or vicinity which may provide psychosocial interventions to the witness, if necessary, including psychotherapy or counselling.

Psychological support may not include discussions about the evidence the witness will present or practicing the act of testifying. It must be established who should be in charge of organising psychological support (e.g. the court or the Ministry of Justice). The support itself should be provided by mental health professionals, primarily psychologists and psychiatrists, who have received additional training for these types of interventions. The organisational framework of providing support may be diverse, including mental health centres, qualified non-governmental organisations or other qualified physical and legal entities. The implementation of the proposed measures would decrease the negative psychosocial consequences on witnesses testifying in war crimes trials, particularly victims-witnesses, and would probably increase the readiness of other witnesses to testify in these exceptionally difficult and sensitive trials. A high level of stress and having to remember traumatic experiences reduces the witness’s ability to participate and respond to questions or to credibly remember the event contributing to determining facts. The testimony may seriously jeopardise the process of trauma recovery, which is why it is not only a moral but also a professional responsibility of the legislative authorities and bodies to reduce, as much as possible, the circumstances contributing to this.


7

APPENDICES


Appendices

7

7. Appendices 117

7.1. Goals and methodology of the survey upon which the analysis is based For the purpose of obtaining a parallel analysis of the existing support system for victims/witnesses at courts in violent criminal offence trials (murder, attempted murder, rape, robbery) and war crimes and the needs of victims/ witnesses, three interconnected surveys have been conducted: 1) A survey of the experiences victims/witnesses had in war crimes procedures, 2) A survey of the experiences victims/witnesses had in procedures involving violent criminal offences, and their suggestions for improving victims/witness support, and 3) Experiences and opinions of county court judges who handle criminal cases regarding victim/witness support in procedures for serious criminal offences involving violence.

Since each of the three surveys had its specific goals and methodology best suited for the analysis purpose, a presentation of each survey has been provided separately.

7.1.1. Survey of experiences of victims/witnesses in violent criminal offences and their proposals for improving support to victims/witnesses of criminal offences 7.1.1.1. Survey goals 1. To examine the experiences and opinions of victim/witnesses regarding the support they received in relation to testifying in cases involving violent criminal offences, as well as their needs for support during these criminal proceedings. 2. To determine which forms of support victim/witnesses propose to facilitate obtaining testimonies in criminal cases.

For the purpose of this and the third survey, the term “witness support� has been defined as a group of procedures, the aim of which is to provide support to victims/witnesses in order to reduce their feeling of being physically, psychologically or threatened in some other form. The support to victims/witnesses defined in this way refers to the actions taken by any state authority (police, state attorney’s office, court), state or private services or non-governmental organisations prior to, during or after testifying in court.


7

Appendices

7.1.1.2. Data gathering procedures and instruments

118

Data gathering was accomplished by conducting individual polls with witnesses following their testimonies at selected county courts in the period between 15 January and 16 February 2007. The survey was conducted in selected county courts, which were expected to enable the data gathering in the time frame available due to the number of cases they handled. Questions in the questionnaire referred only to experiences regarding testimonies and proposals regarding the forms and methods of ensuring support when it is necessary and the rights of victims/witnesses and their protection. When an interviewee was older or illiterate or of poor mental or physical health, the poll-taker would read the questions and answers in the poll, while most of the participants completed the questionnaires themselves possibly with explanations by the poll-taker. The questionnaire completion took about 20 minutes. Participants were guaranteed the confidentiality of their statements, and only a few general facts were recorded (age, educational degree, occupation, household members). Only group data has been used in analyses which has ensured the participants’ anonymity. Poll-takers were students in their final years of studying psychology and law, as well as court interns in some of the courts. They all attended a half-day training course in order to ensure a consistent application of procedures and understanding of the survey contents. The poll-takers were supervised by a coordinator monitoring the progress of field work, who was available for any additional explanations. The questionnaire contained 49 questions of which five had secondary questions. All questions except one had multiple-choice answers. Question contents and form were prepared by an interdisciplinary research team255. Question contents and multiple-choice answers were phrased on the basis of existing regulations in the Republic of Croatia in regard to witness protection, data obtained from foreign surveys and the formulation of the survey goal.

7.1.1.3. Survey participants - witnesses The survey encompassed 133 witnesses. The analysis encompassed 130 questionnaires since three questionnaires were incomplete. The majority of the witnesses approached by poll-takers participated in the survey (73%). Sample characteristics are indicated in Tables 1 and 2. Table 1. Demographic characteristics of the witness sample

f

%

Men

55

42,3

Women

75

57,7

18 – 25 yrs

27

20,9

26 – 35 yrs

28

21,7

36 – 50 yrs

48

37,2

51 yrs or over

26

20,2

Elementary (and

23

17,7

incomplete)

81

62,3

High school

10

7,7

Two-year university

16

12,3

Characteristics Sex

Age

Education

The sample shows a somewhat larger number of female participants; participants between 36 and 50 years old (while the number of participants in the other three age categories is similar); in relation to education most participants have a completed high school degree.

255 County court judge, law school professor, psychologist


Appendices

7

Table 2. Witness sample distribution according to county courts

Court size

Larger court

Smaller court

Court location

f

%

Zagreb

48

36,9

Split

14

10,8

Osijek

16

12,3

Rijeka

6

4,6

Total larger courts

84

64,6

VaraĹždin

10

7,7

Bjelovar

12

9,2

Pula

9

6,9

Zadar

5

3,8

Sisak

10

7,7

Total smaller courts

46

35,4

Total

130

100,0

The largest number of participants testified at the court in Zagreb. In regard to their size courts have been divided into two categories – larger and smaller courts. About two-thirds of the witnesses participated in court proceedings at larger courts. Questionnaires were checked to verify their completion and ensure quality; data was codified and entered into a computer. A descriptive data analysis was conducted by components for the entire witness sample, for larger and smaller courts and in regard to the witnesses’ role in the proceedings (victim, eyewitness, neither a victim nor an eyewitness). Data was analysed by the analytical software package SPSS13.

7.1.2. Experiences and opinions of county court judges handling criminal cases about victim/witness support 7.1.2.1. Survey goal and data gathering procedure The goal was to compile the experiences and opinions of county court judges handling criminal cases regarding victim/witness support in criminal proceedings. Data gathering was conducted by polls through the mail sent to all judges working on criminal cases of the 21 county courts in Croatia. Judges were not asked to provide their first or last names in the course of data gathering. However, some other general data was requested (name of the court where the judge works, years of experience in the position of a judge, their function in court, sex, age). An accompanying letter explained that the data would be presented and interpreted only on a group level, and that data confidentiality was guaranteed by the poll-takers. The Minister of Justice of the Republic of Croatia and the Supreme Court Deputy President sent a letter of support to all county court presidents asking them to help and support the implementation of this survey. Judges received the letter by mail with a request to participate in the survey and an explanation of its significance. The questionnaire was enclosed with the letter, and the judges were asked to complete and return it by mail to the survey coordinator, in the stamped, addressed envelope provided. The return of completed questionnaires was monitored and 8 days after the deadline for its return another letter was sent to the judges (reminder) with the questionnaire and a request to the judges to complete and return it. This reminder was sent to all judges since it was not analysed which judges had returned the completed questionnaires after the first request. Data gathering was conducted in the period between 15 January and 16 February 2007.

119


7

Appendices

The questionnaire contained 23 questions of which 10 had secondary questions. Some questions provided the possibility to the judges to explain their answers or to supplement the options offered. Questions were phrased based on the contents stipulated by law, experiences from other countries and results of the focus group, including judges. The questionnaire completion took about 15 minutes.

120

The contents of the draft questionnaire were verified in the process of preparation by the involvement of a focus group, including six judges of the county court in Zagreb, experienced in a large number of criminal offence cases. The discussion held covered 10 areas which correspond to sections in the questionnaire for judges related to these areas. This process confirmed that the areas were well selected and the questions and multiple-choice answers in the questionnaire properly phrased.

7.1.2.2. Survey participants – county court judges This survey encompassed all investigating, first instance and hearing judges at county courts conducting criminal proceedings, a total of 167 questionnaires were sent out. The total number of judges who returned questionnaires was 117. However, 7 questionnaires were incomplete (with more than 20% of the questions unanswered) and were not processed, so that only 110 questionnaires were processed (representing 66% of all county court judges in Croatia who handle criminal cases). Sample characteristics of judges participating in the questionnaire have been indicated in Tables 3 to 9. Table 3. Number of judges participating in the poll

f

%

Zagreb

22

20,0

Zlatar

2

1,8

Sisak

6

5,5

Karlovac

4

3,6

Varaždin

7

6,4

Koprivnica

4

3,6

Bjelovar

5

4,5

Rijeka

6

5,5

Gospić

4

3,6

Virovitica

3

2,7

Požega

5

4,5

Slavonski Brod

3

2,7

Zadar

4

3,6

Osijek

6

5,5

Šibenik

5

4,5

Vukovar

5

4,5

Split

4

3,6

Pula

7

6,4

Dubrovnik

4

3,6

Čakovec

3

2,7

Velika Gorica

1

,9

110

100,0

County court

Total


Appendices

7

For the purpose of analysis courts have been divided into two categories - “larger” (Zagreb, Rijeka, Osijek and Split) and “smaller” as shown in Table 4. Table 4. Number of judges in smaller and larger courts

f

%

Larger

38

34,5

Smaller

72

65,5

Total

110

100,0

f

%

Up to 10

13

11,9

11 – 20

40

36,7

21 – 30

44

40,4

31 – 40

12

11,0

Total

109

100,0

Court size

Table 5. Number of years of service as a judge

Year

The average years of service as a judge for judges participating in the questionnaire was a little over 21 years (M=21,27). No significant difference exists between the judges’ years of service and the size of the court where they are employed. Table 6. Number of years of working on criminal cases

f

%

Less than 5

5

4,5

5 to 10

9

8,2

10 to 15

29

26,4

15 to 20

19

17,3

20 or over

48

43,6

Total

110

100,0

f

%

Investigating

23

21,1

Hearing

30

27,5

Appellate

28

25,7

Investigating-hearing

4

3,7

Investigating-appellate

6

5,5

Appellate-hearing

12

11,0

All 3 functions

6

5,5

109

100,0

Year

Table 7. Function of judges in court

Total

121


7

Appendices

Judges who participated in the poll, employed at larger or smaller courts do not show significant statistical difference in regard to their function in court. Table 8. Sex of the judges participating in the poll

122

Sex

f

%

Male

69

62,7

Female

41

37,3

Total

110

100,0

There is no difference in the number of male and female judges employed at larger or smaller courts. Furthermore, there is no indication of differences between male and female judges in regard to the years of service as judges, nor to their judicial function in court. Table 9. Age of the judges participating in the poll

f

%

25 – 34

0

0

35 – 44

17

15,5

45 – 54

49

44,5

55 or over

44

40,0

Total

110

100,0

Ages

Judges employed at larger or smaller courts do not show statistical differences in relation to age. Questionnaires were checked to verify their completion and ensure quality; data was codified and entered into a computer. A descriptive data analysis was conducted by components for the entire sample of judges, for larger and smaller courts, in regards to the sex of judges and according to their function in court (hearing, appellate or investigating judges). In addition, a correlation analysis was conducted where necessary. Data was analysed by the analytical software package SPSS13.

7.1.3. Survey of experiences of witnesses of war crimes procedures 7.1.3.1. Survey goal and data gathering procedure The goal was to compile the experience witnesses in criminal offences for war crimes had prior to their arrival at court, during the court proceedings and following its termination, as well as their needs for support. For the purpose of this survey “witness experiences” were defined as forms of support and protection which the witnesses in procedures for war crimes received from any state authority (police, state attorney’s office, court) prior to, during and after testifying in court or such support and protection was not provided resulting in their feeling threatened, and having second thoughts as to whether to testify or not. Data gathering was conducted by a qualitative method, by semi-structured interviewing with a guide for conducting the interview. Interview questions never referred to the contents of the actual testimony, only to the experience of the interviewee in the role of a witness in war crimes criminal proceedings. Interviews were conducted by psychologists experienced in interviewing people who have suffered a trauma or a loss. Interviewees consented to audio recording of the interview. Audio recordings were transcribed word-for-word and as such prepared for analysis. Interviewees were informed in detail about the purpose of their participation in the survey, and procedures for ensuring data confidentiality and their identity protection were explained to them.


Appendices

7

Data confidentiality was ensured by keeping the list with names of interviewees and assigned codes locked in a different location from the interview recordings. Recordings only used codes for interviewees, while the analyses that followed did not indicate any of their names or other identification data. Individual interviews lasted from 20 to 75 minutes, the majority of them taking an hour. Interviewees were reimbursed for the expenses they may have incurred in relation to the interview, and received an allowance for their time during the interview in the amount of one daily expense allowance. Interviews were conducted in places where interviewees lived, either in their homes or in other quiet locations. No other people were present in the rooms where interviews were conducted.

7.1.3.2. Survey participants Fourteen witnesses participated in the survey, who had testified in courts conducting criminal proceedings for war crimes, they were between 34 and 65 years old, most of them between the ages of 45 and 55. Most of the interviewed witnesses were men (13). Of the total number of interviewees, 12 of them testified at the main hearing and one during the investigation process. Interviewees were identified and encouraged to cooperate by members of the civil society organisations engaged in the protection and promotion of human rights. Interviewees were personally contacted by members of these organisations who had been in contact with the interviewees previously. The goal of the first contact was to encourage them to participate and to explain the general purpose of the survey. County courts where the procedures were conducted were: Karlovac, Sisak, Split, Osijek, Vukovar and Rijeka. Interview transcripts were coded in regard to the contents, and an analysis of the contents was conducted by taking into consideration the logical structure in relation to the survey goal. The analysis was conducted by a qualified analyst experienced in qualitative analyses. Illustrative parts of the interview were indicated in the analysis in order to support the findings and conclusions.

7.2. List of international and regional documents 7.2.1. UN documents: International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49 http://www.ohchr.org/english/law/ccpr.htm Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims Declaration), GA Res. 40/34 of 29 November 1985, available at http://www.asc41.com/un5.htm The Handbook on Justice for Victims on the Use and Application of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, U.N. Doc. E/CN.15/1998/1 http://www.victimology.nl/onlpub/hb/hbook.html Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Human Rights Violations) http://www.ohchr.org/english/law/remedy.htm UNDCP Model Witness Protection Bill, 2000 http://www.unodc.org/pdf/lap_witness-protection_2000.pdf

123


7

Appendices

7.2.2. Documents of international criminal courts: Excerpts from the Statute of the International Criminal Tribunal for the Former Yugoslavia

124

http://www.un.org/icty/bhs/icty/documents/statute-b.htm

Excerpts from the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia http://www.un.org/icty/legaldoc-e/basic/rpe/IT032Rev39e.pdf

Excerpts from the Statute of the International Criminal Court http://www.un.org/law/icc/statute/romefra.htm

Excerpts from the Rules of Procedure and Evidence of the International Criminal Court http://www.icc-cpi.int/library/about/officialjournal/Rules_of_Proc_and_Evid_070704-EN.pdf

Draft Statute for an International Criminal Court, Report of the ILC on the work of its forty-sixth session, 2 May - 22 July 1994

7.2.3. Council of Europe documents: European Convention on the Compensation of Victims of Violent Crimes (ETS No. 116), Strasbourg, 24.XI.1983 http://conventions.coe.int/Treaty/EN/Treaties/Html/116.htm

Recommendation Rec(2006)8 of the Committee of Ministers to Member States on assistance to crime victims (Adopted by the Committee of Ministers on 14 June 2006 at the 967th meeting of the Ministers’ Deputies) https://wcd.coe.int/ViewDoc.jsp?id=1011109&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogg ed=FFAC75

Recommendation Rec(2005)9 of the Committee of Ministers to Member States on the protection of witnesses and collaborators of justice (Adopted by the Committee of Ministers on 20 April 2005 at the 924th meeting of the Ministers’ Deputies) https://wcd.coe.int/ViewDoc.jsp?id=849237&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogge d=FFAC75

Guidelines on the Protection of Victims of Terrorist Acts (2005) (Adopted by the Committee of Ministers on 2 March 2005 at the 917th meeting of the Ministers’ Deputies) http://www.legislationline.org/legislation.php?tid=46&lid=6252&less=false

Recommendation Rec(2002)5 of the Committee of Ministers to Member States on the protection of women against violence (Adopted by the Committee of Ministers on 30 April 2002 at the 794th meeting of the Ministers’ Deputies) https://wcd.coe.int/ViewDoc.jsp?id=280915&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackColorLogge d=FFAC75


Appendices

7

Recommendation No. R (2000) 11 of the Committee of Ministers to Member States on action against trafficking in human beings for the purpose of sexual exploitation (Adopted by the Committee of Ministers on 19 May 2000 at the 710th meeting of the Ministers’ Deputies) http://www.coe.int/T/E/human_rights/trafficking/PDF_Rec(2000)11_E.pdf

Recommendation No. R (99) 19 of the Committee of Ministers to Member States concerning Mediation in Penal Matters (Adopted by the Committee of Ministers on 15 September 1999 at the 679th meeting of the Ministers’ Deputies) sfm.jura.uni-sb.de/archives/images/mediation-en%5B1%5D.doc

Recommendation No. R (97) 13 of the Committee of Ministers to Member States concerning Intimidation of Witnesses and the Rights of the Defense (Adopted by the Committee of Ministers on 10 September 1997 at the 600th meeting of the Ministers‘ Deputies) http://www.coe.int/t/e/legal_affairs/legal_co-operation/combating_economic_crime/1_standard_settings/Rec_1997_ 13.pdf

Recommendation No. R (96) 8 of the Committee of Ministers to Member States on Crime Policy in Europe in a Time of Change (Adopted by the Committee of Ministers on 5 September 1996 at the 572nd meeting of the Ministers’ Deputies) http://www.coe.int/t/e/legal_affairs/legal_co-operation/combating_economic_crime/1_standard_settings/Rec_1996_8.pdf

Recommendation No. R (91) 11 of the Committee of Ministers to Member States concerning Sexual Exploitation, Pornography and Prostitution of, and Trafficking in, Children and Young Adults (Adopted by the Committee of Ministers on 9 September 1991 at the 461st meeting of the Ministers’ Deputies) http://cm.coe.int/ta/rec/1991/91r11.htm

Recommendation No. R (87) 21 of the Committee of Ministers to Member States on Assistance to Victims and the Prevention of Victimisation (Adopted by the Committee of Ministers on 17 September 1987 at the 410th meeting of the Ministers’ Deputies)

Recommendation No. R (85) 11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure (Adopted by the Committee of Ministers on 28 June 1985 at the 387th meeting of the Ministers’ Deputies) http://ec.europa.eu/civiljustice/comp_crime_victim/docs/council_eur_rec_85_11_en.pdf

Recommendation No. R (83) 7 of the Committee of Ministers to Member States on Participation of the Public in Crime Policy (Adopted by the Committee of Ministers on 23 June 1983 at the 361st meeting of the Ministers’ Deputies)

Resolution on the prevention of everyday violence in Europe, Adopted by the European Ministers responsible for the prevention of violence in everyday life at their ad hoc conference ‘Preventing everyday violence in Europe : responses in a democratic society’ (Oslo, Norway, 7-9 November 2004)

Resolution No. 2 on The Social Mission of the Criminal Justice System-Restorative Justice, Adopted at the 26th Conference of European Ministers of Justice (Helsinki, Finland, 7-8 April 2005) http://www.coe.int/t/e/legal_affairs/legal_co%2Doperation/conferences_and_high%2Dlevel_meetings/european_ ministers_of_justice/MJU-26(2005)Res2E.pdf

125


7

Appendices

7.2.4. EU documents:

126

Convention for the Protection of Human Rights and Fundamental Freedoms, 4. 11. 1950., 213 U.N.T.S. 222, 224, reprinted in 45 Am J. Int’l L. Supp. 24 (1951), http://www.pfc.org.uk/legal/echrtext.htm Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings http://www.legislationline.org/legislation.php?tid=155&lid=5696&less=false Council Directive 2004/80/EC od 29 April 2004 relating to compensation to crime victims http://eur-lex.europa.eu/LexUriServ/site/en/oj/2004/l_261/l_26120040806en00150018.pdf Council of Europe Convention on Action against Trafficking in Human Beings, Warsaw, 16 May 2005 http://conventions.coe.int/Treaty/EN/Treaties/Html/197.htm

7.3. List of verdicts of the European Court of Human Rights The verdicts are available at http://cmiskp.echr.coe.int

A.M. v. Italy, judgement of 14 December 1999, Application no. 37019/97, Reports 1999-IX Adolf v. Austria, judgement 26 March 1982, Application no. 8269/78, Series A, No. 49 Artner v. Austria, judgement of 28 August 1992, Application no. 13161/87, Series A, , No. 242-A Asch v. Austria, judgement of 26 April 1991, Application no. 12398/88, Series A, No. 203 Axen v. Germany, judgement of 08 December 1983, Application no. 8273/78, Series A, No. 72 Belilos v. Switzerland, judgement of 29 April 1988, Application no. 10328/83, Series A, No. 132 Birutis and others v. Lithuania, judgement of 28 March 2002, Application nos. 47698/99 and 48115/99 Campbell and Fell v. The United Kingdom, judgement of 28 June 1984, Application no. 7819/77 and 7878/77, Series A, No. 80 De Cubber v. Belgium, judgement of 26 October 1984, Application no. 9186/80, Series A, No. 86 Delcourt v. Belgium, judgment of January 17 1970, Application no. 2689/65, Series A, No. 11 Delta v. France, judgement of 19 December 1990, Application no. 11444/85, Series A, No. 186-A Deweer v. Belgium case, judgement of 27 February 1980, Application no. 6903/75, Series A, No. 35 Doorson v. The Netherlands, judgement of 26 March 1996, Application no. 20524/92, Reports 1996-II Ekbatani v. Sweden, judgement of 26 May 1988, Application no. 10563/83, Series A, No. 134 Ferrantelli and Santangelo v. Italy, judgement of 7 August 1996, Application no. 19874/92, Reports 1996-III Garcia Ruiz v. Spain, judgement of 21 January 1999, Application no. 30544/96, Reports 1999-I Golder v. The United Kingdom, judgement of 21 February 1975, Application no. 4451/70, Series A, No. 18 H. v. Belgium, judgement of 30 November 1987, Application no. 8950/80, Series A, No. 127-B Isgro v. Italy, judgement of 19 February 1991, Application no. 11339/85, Series A, No. 194 Kostovski v. The Netherlands, judgement of 20 November 1989, Application no. 11454/85, Series A, No. 166 Le Compte, van Leuven and de Meyere v. Belgium, judgement of 23 June 1981, Application no. 6878/75 and 7238/75, Series A, No. 43


Appendices

7

Luca v. Italy, judgement of 27 February 2001, Application no. 33354/96, Reports 2001-II Ludi v. Switzerland, judgement of 15 June 1992, Application no. 12433/86, Series A, No. 23 Monnell and Morris v. The United Kingdom, judgement of 2 March 1987, Application no. 9562/81 and 9818/82, Series A, No. 115 P.S. v. Germany, judgement of 20 December 2001, Application no. 33900/96 S.N. v. Sweden, judgement of 2 July 2002, Application no. 34209/96 Saidi v. France, judgement of 20 September 1993, Application no. 14647/89, Series A, No. 261-C Solakov v. ‘the former Yugoslav Republic of Macedonia’, judgement of 31 October 2001, Application no. 47023/99, Reports 2001-X Sunday Times v. The United Kingdom, judgement of 26 April 1979, Application no. 6538/74, Series A, No. 30 Unterpertinger v. Austria, judgement of 24 November 1986, Application no. 9120/80, Series A, No. 110 Van Mechelen and others v. The Netherlands, judgement of 23 April 1997, Application no. 21363/93, 21364/93, 21427/93, 22056/93, Reports 1997-III Vidal v. Belgium, judgement of 22 April 1992, Application no. 12351/86, Series A, No. 235-B Visser v. The Netherlands, judgement of 14 February 2002, Application no. 26668/95 Windisch v. Austria, judgement of 27 September 1990, Application no. 12489/86, Series A, No. 186

7.4. List of verdicts of the ICTY and ICTR Prosecution against Blaškić, Decision of Trial Chamber I on the Requests of the Prosecutor of 12 and 14 1997 in respect of the Protection of Witnesses, 6 June 1997 Prosecution against Brđanin and Talić, IT-99-36-PT, Decision on the Request of the Prosecutor for Protective Measures of 3 July 2000 Prosecution against Delalić, IT-96-21, Decision on the Motions by the Prosecution for Protective Measures for the Prosecution Witnesses Pseudonymed ‘B’ Through to ‘M’ of 28 April 1997 Prosecution against Kordić and Čerkez, IT-95-14/2, transcript of 26 July 1999 Prosecution against Kunarac, IT-96-13&13/1, Decision on Prosecution Motion to Protect Victims and Witnesses, of 29 April 1998 Prosecution against Tadić, IT-94-1-A-T, Decision on the Prosecutor’s Motion Requesting Measures for Victims and Witnesses, of 10 August

7.5. List of RC regulations CC – Criminal Code (OG 110/97, 28/98, 50/00, 129/00, 51/01, 111/03, 105/04, 84/05, 71/06) APSE – Act on Prison Sentence Execution (OG 128/99, 55/00, 59/00, 129/00 i 59/01) CPA – Criminal Procedure Act (OG 110/97, corrigendum 27/98, 58/99, 112/99, 58/02, corrigendum 143/02, 115/06) ALLPCO - Act on the Liability of Legal Persons for Criminal Offences (OG 151/03) PA – Police Act (OG 129/00) MA – Misdemeanour Act (OG 88/02) CA – Courts Act (OG 150/05) MCA – Minor Courts Act (OG 111/97) ZUSKOK - Act on the Office for the Prevention of Corruption and Organised Crime (OG 88/01, 12/02, 33/05)

127


7

Appendices

DVPA - Domestic Violence Protection Act (OG 116/03) WPA – Witness Protection Act (OG 163/03)

128

Act on Implementing the Statute of the International Criminal Court and on the Prosecution of Criminal offences Against the International Law of War and the International Humanitarian Law (OG 175/03)

7.6. References Helen Brady, Trials and Appeals Before the International Criminal Court, www.redcross.org.au Brienen, M.E.I., Hoegen, E.H., Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the position of the victim in the Framework of Criminal Law and Procedure, Niemegen, Netherlands: WLP, 2000. Christopher Hall, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, 94 AM. J. OF INT. L. 773, 824 (2000). Home Office (2001) - Achieving best evidence in criminal proceedings: Guidance for vulnerable or intimidated witnesses, including children. London: Home Office, Volume 2. Home Office (1998) - Speaking up for justice: Report of the Interdepartmental Working Group on the treatment of vulnerable or intimidated witnesses in the criminal justice system London: Home Office Christopher Hall, The First Five Sessions of the UN Preparatory Commission for the International Criminal Court, 94 AM. J. OF INT. L. 773, 824 (2000). Dubravka Hrabar, Child – Victim and Witness in Criminal Proceedings, 7 HLJKPP 221 (2000) Kellye L. Fabian, Note and Comment: Proof and Consequences: An Analyses of the Tadić and Akayesu Trials, 49 DEPAUL L. REV. 981 (2000). Graham Farrell, Multiple victimization: Its Extent and Significance, INTERNATIONAL REVIEW OF VICTIMOLOGY (1992). John R.W.D. Jones, Protection of Victims and Witnesses, u THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, Volume II, 1360 (eds. Antonio Cassese, Paola Gaeta, John R.W.D. Jones, 2002). Kiza, E., Rathgeber, C. and Rohne, H.-C. (2006) Victims of war: Hamburg: Hamburger Editions Davor Krapac, Criminal Procedural Law, 19 (2003) Lobwein, W. (2006) Experiences of the victims and witnesses section at the ICTY: Large-scale victimisation as a potential source of terrorist activities U: U. Ewald I K. Turković (ed.). Amsterdam: IOS Press, 197-207 David Lusty, Anonymous Accusers: An Historical and Comparative Analyses of Secret Witnesses in Criminal Trials, 24 SYDNEY L. REV. 361, 419 (2002). Virginia Morris i Michael P. Scharf, An Insider’s Guide to The International Criminal Tribunal for The Former Yugoslavia 242 (1994.). Protecting witnesses of serious crime – Training manual for law enforcement and judiciary 145-158 (Council of Europe Publishing, 2006). Peter J. Schick, Protecting a criminal offence victim as opposed to defendant’s rights in criminal proceedings, 1 HLJKPP 379 (1994) Stover, E. (2005) The witnesses: War-crimes and the promise of justice in the Hague Philadelphia: University of Pennsylvania Press Ksenija Turković, Domestic violence, analysis of criminal and misdemeanour legislation with proposals for amendments, http://www.mobms.hr Ksenija Turković, Influence of international criminal law on the development of rights of international crimes victims and victims in general in the European Union and the Republic of Croatia, Faculty of Law Annals, University of Zagreb, 54(2004); p. 865-937 Patricia M. Wald, Note from the Field: Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslav Tribunal, 5 YALE H.R. & DEV. L.J. 217, 219 (2002).


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JUSTICE AND SECURITY

United Nations Development Programme (UNDP) The Office of the Resident Representative in Croatia www.undp.hr

Support to Victims and Witnesses of Criminal Offences, Croatia  
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