Автор работы: Пользователь скрыл имя, 05 Марта 2016 в 11:30, реферат
In recent years transnational organized crime has grown. Criminal organizations are becoming stronger and more diverse. They are engaging more and more frequently in systematic forms of cooperation designed to further their criminal activities. In the investigation and prosecution of crime, particularly the more serious and complex forms of organized crime, it is essential that witnesses, the cornerstones for successful investigation and prosecution, have trust in criminal justice systems.
Министерство образования Республики Беларусь
Учреждение образования
«Гомельский государственный университет
имени Франциска Скорины»
Факультет иностранных языков
Кафедра английского языка
WITNESS PROTECTION
Реферат
Исполнитель:
магистрант кафедры
уголовного права и процесса __________________
Рецензент:
преподаватель
кафедры английского языка __________________ Вегеро М.В.
Гомель 2016
Table of Contents:
In recent years transnational organized crime has grown. Criminal organizations are becoming stronger and more diverse. They are engaging more and more frequently in systematic forms of cooperation designed to further their criminal activities. In the investigation and prosecution of crime, particularly the more serious and complex forms of organized crime, it is essential that witnesses, the cornerstones for successful investigation and prosecution, have trust in criminal justice systems.
Witnesses need to have the confidence to come forward to assist law enforcement and prosecutorial authorities. They need to be assured that they will receive support and protection from intimidation and the harm that criminal groups may seek to inflict upon them in attempts to discourage or punish them from cooperating.
The United Nations Convention against Transnational Organized Crime and its Protocols call upon State Parties to introduce appropriate measures to prevent witness intimidation, coercion, corruption or bodily injury, and to strengthen international cooperation in this regard. Often though, even where such measures have been legislated, implementation remains less than satisfactory and further progress is needed particularly with regard to cross-border cooperation especially regarding the change of identity and relocation of at-risk witnesses.
The ability of a witness to give testimony in a judicial setting or to cooperate with law enforcement investigations without fear of intimidation or reprisal is essential to maintaining the rule of law. Increasingly, countries are enacting legislation or adopting policies to protect witnesses whose cooperation with law enforcement authorities or testimony in a court of law would endanger their lives or those of their families.
Protection may be as simple as providing a police escort to the courtroom, offering temporary residence in a safe house or using modern communications technology (such as videoconferencing) for testimony. There are other cases, though, where cooperation by a witness is critical to successful prosecution but the reach and strength of the threatening criminal group is so powerful that extraordinary measures are required to ensure the witness’s safety. In such cases, resettlement of the witness under a new identity in a new, undisclosed place of residence in the same country or even abroad may be the only viable alternative.
Witness protection first came into prominence in the United States of America, in the 1970s, as a legally sanctioned procedure to be used in conjunction with a programme for dismantling Mafia-style criminal organizations. Until that time, the unwritten “code of silence” among members of the Mafia – known as omertà – held unchallenged sway, threatening death to anyone who broke ranks and cooperated with the police. Important witnesses could not be persuaded to testify for the state and key witnesses were lost to the concerted efforts of crime bosses targeted for prosecution [2, с. 395].
In 1970, the Organized Crime Control Act empowered the United States Attorney General to provide for the security of witnesses who had agreed to testify truthfully in cases involving organized crime and other forms of serious crime. Under the Attorney General’s authority, the Witness Security (WITSEC) Program of the United States ensures the physical security of at-risk witnesses predominantly through their resettlement to a new, undisclosed place of residence under a changed name and new identity details.
For a witness to qualify for the WITSEC Program, the case in question must be extremely significant, the witness’s testimony must be crucial to the success of the prosecution and there must be no alternative way of securing the witness’s physical safety. There are also other conditions, such as the witness’s psychological profile and ability to abide by the rules and restrictions imposed by the programme. Over the years, eligibility for coverage under the WITSEC Program has been extended from witnesses to Mafia-style crimes to include witnesses to other types of organized crime, such as those perpetrated by drug cartels, motorcycle gangs, prison gangs and violent street gangs.
Today, witness protection is viewed as a crucial tool in combating organized crime, and a large number of countries around the world have established such specialized programmes or have legislated their creation.
The definition of “witness” may differ according to the legal system under review. For protection purposes, it is the function of the witness – as a person in possession of information important to the judicial or criminal proceedings – that is relevant rather than his or her status or the form of testimony. With regard to the procedural moment at which a person is considered to be a witness, the judge or prosecutor does not need to formally declare such status in order for protection measures to apply.
Witnesses can be classified into three main categories:
Justice collaborators
A person who has taken part in an offence connected with a criminal organization possesses important knowledge about the organization’s structure, method of operation, activities and links with other local or foreign groups. An increasing number of countries have introduced legislation or policies to facilitate cooperation by such people in the investigation of cases involving organized crime. These individuals are known by a variety of names, including cooperating witnesses, crown witnesses, witness collaborators, justice collaborators, state witnesses. There is no moral element involved in their motivation to cooperate. Many of them cooperate with the expectation of receiving immunity or at least a reduced prison sentence and physical protection for themselves and their families. They are among the main participants in witness protection programmes.
The combination of lenience in (or even immunity from) prosecution with witness protection is considered a powerful tool in the successful prosecution of organized crime cases.
However, the practice can raise ethical issues as it may be perceived as rewarding criminals with impunity for their crimes. To address those concerns, a growing number of legal systems provide that the «benefit» to collaborators is not complete immunity for their involvement in criminal activities but rather a sentence reduction that may be granted only at the end of their full cooperation in the trial process.
Following their release from prison, justice collaborators may be resettled to a new, secret location under a different identity if the threat to their life persists and other conditions are also fulfilled. Family members of justice collaborators, however, may be admitted to the programme while the witness is still in custody.
Sometimes prisoner-witnesses commit new crimes after their release from prison and admission to the programme and are subsequently terminated from witness protection. To ensure that their return to prison would not endanger their lives because of their previous cooperation, the prison administration may place them in an inmate monitoring programme and house them separately from other prisoners who are known to pose a danger to them.
Victim-witnesses
In accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly resolution 40/34, annex), «victims» means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws proscribing the criminal abuse of power.
Victims play a central role in the criminal process. They may be the complainant initiating the proceedings or they may be witnesses for the prosecution. Because of the victims’ vulnerability, there is general agreement that they should receive assistance before, during and after their participation in a trial. To ensure their physical safety, general police and in-court protection measures may be applied. Victim-witnesses may also be included in a wit- ness protection programme if all other conditions are fulfilled.
Other participants
Some countries consider for inclusion in witness protection programmes not only witnesses but also other categories of people whose relation to a criminal case may put their lives in danger, such as judges, prosecutors, undercover agents, interpreters and informants.
The use of informants and intelligence providers by the police is an important element in the investigation and prevention of crimes. Their role is different from that of witnesses, however, as they are not called to testify in court and, in some countries, it is not necessary to disclose the assistance they provide.
In most countries, it is only in exceptional circumstances that judges, prosecutors, under-cover agents, expert witnesses and interpreters are included in witness protection programmes. Intimidation or threats against their lives are considered to relate to their posts and the performance of their duties. They can qualify for special police protection, job transfers or early retirement, but their protection differs in nature from the protection measures intended for at-risk witnesses [3, с. 347-349].
Organized crime
Witness intimidation has become such a common feature of criminal investigations and prosecution that protection measures for witnesses are considered an essential element of a country’s arsenal against organized crime. The growing tendency of inquisitorial legal systems to adopt elements once exclusive to adversarial systems – such as the greater value given to oral testimony and lesser weight to pretrial statements – has increased the importance of witnesses in criminal proceedings involving serious crimes and, accordingly, the obligation to preserve their evidence.
The United Nations Convention against Transnational Organized Crime provides that States parties should take appropriate measures to protect witnesses in criminal proceedings related to crimes covered by the Convention and its Protocols. Those crimes include:
Terrorism
Witness protection has been particularly important in combating terrorism. The closed nature of terrorist groups makes it difficult to use traditional investigative methods with any degree of success and often requires exceptional measures. In some countries, counter-terrorism rather than organized crime was the primary consideration in introducing witness protection measures.
The resurgence of international terrorism at the beginning of the new millennium has changed the environment of witness protection, especially with regard to the protection of personal data. An uncomfortable relationship has developed between witness protection authorities and counter-terrorism agencies, as the former have come under increased pressure to share information relating to protected witnesses. Experience has been mixed. In some countries a large percentage of witnesses under protection are involved in terrorism-related cases. Elsewhere, the use of witness protection in terrorism cases has not been the rule. Terrorism investigations are generally handled by special counter-terrorism or intelligence agencies and their objective is most often prevention rather than prosecution.
Corruption
In the United Nations Convention against Corruption States parties are called upon to take appropriate measures for the protection of witnesses against retaliation or intimidation for their testimony. Under the Convention, protection should be granted not just to witness collaborators but also to victims who become witnesses, and it can extend to family members or persons close to the witness. The measures envisaged include:
A number of countries include corruption among the crimes to be covered by witness protection programmes. Under that approach, the same criteria are used for the consideration of witnesses in cases involving corruption or organized crime. Although witnesses in serious corruption cases may occasionally face a threat to their lives, they are more often subjected to harassment at work, covert threats of retaliation, demotion or similar action. As a result, the criteria used for assessing the level of threat against witnesses in the majority of corruption cases are less exclusive than in organized crime cases, where the threat to the witness’s life that would give cause for inclusion in the witness protection programme is likely to be much higher. To address those problems and ensure that corruption is tackled effectively, a number of countries have chosen to establish separate protection programmes for witnesses in corruption cases [1, с. 35-40].
The witness protection authority may be:
However, there are variations to the general rules mentioned above:
Careful consideration should be given to how the witness protection authority exercises its discretionary powers and which measures it can apply. In most cases, decisions are not subject to any kind of external review because, for security and confidentiality reasons, no other authority has access to the information available to the witness protection authority. However, in some instances, the decisions made by the witness protection authority are subject to internal or judicial review.
Before admitting a witness to a protection programme, an assessment needs to be conducted to provide the witness protection authority with all the information it requires to make a valid and informed decision. Some of the most important elements of that assessment are:
Such an assessment may also consider other aspects, such as the witness’s family situation (marital status, number of children or other protected family members, criminal record of spouse).
The assessment process is an unsettling period for the applicant. If necessary, interim protection may be offered until a final decision is reached.
Witnesses must be under serious threat to be admitted to a witness protection programme. It is less important what type of witness they are or what type of crime they have observed. In general, the threat must be against the witness’s life; it does not extend to his or her well-being or property.
A threat assessment can be defined as the investigative and operational techniques used by law enforcement authorities to identify, assess and manage the risk and potential perpetrators of targeted violence against a witness. In the majority of programmes, the threat assessment is performed by the witness protection unit alone or in cooperation with the regular police. In some programmes, such as those of Austria and the United States, the assessment is performed by regular police officers or an investigative agency in order to maintain separation from the protection unit, especially when the unit lacks relevant information. In the case of international relocation, the witness protection units of the countries involved would, as a rule, have to cooperate in evaluating the threat.
A distinction between “threat” and “risk” should be made. A threat assessment looks at whether the life of the witness is in serious danger, and should address issues such as:
A risk assessment examines the chances of the threat materializing and assesses how it can be mitigated. The assessment is conducted according to set standards and using a matrix. Action is taken to reduce the probability of the threat being carried out, for example by using unmarked cars to transport witnesses, resettling witnesses temporarily or providing them with new identities. The assessment is conducted by the witness protection unit and is a key factor in providing tailor-made protection to suit the needs of the witnesses.
In the case of emergency measures taken before the start of a formal protection programme or during the course of the programme, threat assessments are often undertaken for particular operations, such as transportation to court and family reunions, and provide the basis for allocating resources and identifying appropriate protection arrangements.
Throughout the programme and even after its termination, it may be necessary to carry out periodic threat evaluations in order to decide whether to continue, upgrade, discontinue or reinstate protection measures.
Profiling a witness assists the protection authority in making an informed decision about the measures to be taken, the methods to be implemented and the contingency plans to be introduced should the programme be compromised. The assessment is a management tool that provides authorities with information on the kind of protection and support services that witnesses require and how they are to be managed.
It is often stated that ideal witnesses do not exist, just witnesses who need to be managed differently.
In deciding whether to admit someone to a witness protection programme, the competent authority must balance the threat to the life of the witness against: