Witness Protection laws:
A witness is someone who has direct or indirect knowledge of the commission of an event, while a victim is someone who has suffered physically, mentally, psychologically, or financially as a result of the crime. Crime victims and witnesses are frequently required to testify at trials and other legal proceedings.
Both the Penal Code and the Code of Criminal Procedure lack a definition for the term “victim.” We can, however, define ‘victim’ as a person or persons who, individually or collectively, have suffered physical, emotional, financial, social, or psychological injury as a result of the commission of an offense; in some cases, it also includes the immediate dependants or a member of the direct victim’s family, as well as a person who has suffered harm in intervening to assist the victim in distress or to prevent victimization of the victim.
Witness is defined as any individual, including a child, who is or may be compelled to make a statement or give evidence, or who has made a statement or given evidence, in any investigation or judicial proceedings related to the conduct of an offense.
The victim of a crime plays a crucial role in the administration of criminal justice as both a complainant/informant and a prosecution witness. At both the investigation and trial stages of a case arising from a reported crime, the victim’s participation is crucial. Today, however, these victims are susceptible to threats, intimidation, coercion, and harassment by the offenders or their friends, which prevents them from testifying before the investigating officer during the investigation phase or before the courts and tribunals during the trial phase.
The testimony of a victim during the investigation and trial of a case, particularly when the offense is a crime of violence against women and children, is the strongest evidence that may be utilized against the defendant. As the victim is a crucial participant in the entire criminal justice system, the victim’s rights, privileges, and protection must be given significant consideration.
Victims and witnesses are considered the “heart” of the criminal justice system, and it is difficult to decide an accused’s guilt or innocence without the full cooperation and true testimony of all victims and witnesses.
According to the NGO Naripokka, between 2011 and June 2018, 4372 rape crimes were reported, but only five perpetrators were prosecuted. Due to a lack of witnesses, most of them were acquitted.
In a Gopalgonj murder case, the plaintiffs held a press conference lamenting that the defendant had threatened to abandon the case and that they dread receiving fair justice.
In contemporary society, threats, intimidation, coercion, and pressure from offenders and their associates are now commonplace. This is a flagrant violation of Articles 31 and 32 of our Constitution, which safeguard the “Right to protection of law” and “Right to life and personal liberty.” All of these horrible atrocities occur in our country, but there is no particular “Witness and Victim Protection Act” in place.
Disrespectful and scandalous questions to witnesses
Some sections of the Evidence Act of 1872, such as Sections 151 and 152, restrict disrespectful and scandalous questions to witnesses. However, these are only covered by judicial protection. Section 506 of the Penal Code of 1860 specifies the penalties for criminal intimidation. 1973 International Crime Tribunal Act, section 58(A)(1). Section 14 of the 2012 Act for the Prevention and Suppression of Human Trafficking addresses the protection of witnesses. However, none of these measures adequately protect witnesses and victims.
A High Court Division bench composed of Justices M Enayetur Rahim and Amir Hossain issued an order to the government on December 7, 2015, during the hearing of the “Rinku murder case.” In 2006 and 2011, the Law Commission issued two reports to the law ministry about the protection of witnesses and victims.
A significant provision for the protection of victims and witnesses is included in the Rome Statute. Article 68.1 states that the Court shall take reasonable measures to preserve the safety, physical and mental well-being, dignity, and privacy of victims and witnesses. Article- 32 para-1 and 32 2(b) of the UNCAC emphasizes the protection of witnesses and other individuals from potential reprisal or intimidation in relation to their testimony.
Witness Protection laws in neighbouring countries
Recently, our neighboring nation Nepal enacted the 2018 Crime Victim Protection Act. This Act’s Chapter 2 addresses the rights and responsibilities of victims in the Criminal Justice Process. Right to receive fair treatment (sec-4), right against discrimination (sec-5), right to privacy in certain cases such as rape, incest, human trafficking, and sexual harassment (sec-6), right to information (sec-7,8,9), right to become safe (sec-10), right to remain in a separate chamber during a hearing (sec-14), and right to have property returned (sec-15) (sec-15).
Through the historical judgment of ‘Mahendra Chawla vs Union of India,’ India has also implemented the ‘Witness Protection Scheme, 2018’ where they have implemented rights such as: right to secure waiting place at the time of court proceedings, right to information of the status of the investigation and prosecution of the crime, right to treated with compassion and dignity and respecting privacy, right to protection from harm and intimidation, and right to give evidence without fear of retaliation.
If we compare the Nepalese Act with the Indian Scheme, we see that both apply the same rights for victims and witnesses.
We adhere to the adversarial judicial system in Bangladesh, which is a common law nation. Constitutionally and customarily, the long-established rule is that “everyone is deemed innocent until proven guilty beyond a reasonable doubt.” Article 35(3) of our Constitution outlines the constitutional guarantee and fundamental rights of the accused: “Every person accused of a criminal offense shall have the right to a quick and public trial by an independent and impartial court or tribunal established by law.”
Burden of Proof when it comes to Witness Protection laws
Therefore, the burden of proof generally rests with the prosecution and victims. According to sections 101 to 106 of the Evidence Act of 1872, the burden of proof can be changed, but is initially and exclusively the responsibility of victims and the prosecution. Thus, in a criminal prosecution, criminals have a variety of constitutional and legal rights.
The term “victim” is not defined in either the Penal Code of 1860 or the Code of Criminal Procedure of 1898. In some circumstances, we can define ‘victim’ as a person or persons who have experienced physical, emotional, financial, social, or psychic harm as a result of the commission of a crime. Witness is defined as any individual, including a child, who is or may be compelled to make a statement or give evidence, or who has made a statement or given evidence, in any investigation or judicial proceedings related to the conduct of an offense.
The victim of a crime plays a crucial role in the administration of criminal justice as both a complainant/informant and a prosecution witness. Today, however, these victims are susceptible to threats, intimidation, coercion, and harassment by the offenders or their friends, which prevents them from testifying before the investigating officer during the investigation phase or before the courts and tribunals during the trial phase.
Witness Protection laws and challenge to the existing administration of law and order
The syndicated and organized nature of crime in contemporary society poses a challenge to the existing administration of law and order. Particularly, murder, kidnapping, abduction, rape, human trafficking, acid throwing against women and children, and drugs crimes have expanded significantly and are now well-coordinated. For the sake of achieving justice, it is necessary that the victim be allowed to testify in court or before a tribunal freely and without fear or coercion.
Due to fear, intimidation, and threats from the accused, and the absence of any protection measures, it is a common occurrence in our subordinate court that witnesses do not voluntarily appear in court to provide testimony. As a Magistrate, I have dealt with a large number of instances in which witnesses have complained that the defendant lacked the courage to appear in court.
In August of 2019, a witness’s daughter was gang-raped and murdered in the Patuakhali District after her mother testified against the offenders in the Rape case as a witness. The well-known case of Nusrat Jahan Rafi is likewise emblematic of inadequate victim protection.
Witness Protection laws and when the victim is in the custody:
When the victim is in the custody of law enforcement authorities, the crime is sometimes committed. In this context, it is possible to mention the Yesmin murder case, the Pollobi Police Station case, the Sheema murder case, and the Naraiyonganj seven murder case.
The case of Bogura’s Tupan Chowdhury is another unfortunate example of a lack of protection for victims. According to national newspapers, the victim was persuaded to compromise the high-stakes case of rape and torture in exchange for Tk 40 lac.
The Police Bureau of Investigation (PBI) completed a study and released a report on the country’s dacoity incidents in July of 2019. According to PBI’s analysis, 50% of dacoity trials failed in court due to hostile witnesses. In the past decade, the Narcotics Control Department confessed that 48.45% of cases were dismissed and the accused was acquitted due to the testimony of witnesses.
In a few recent cases, the High Court Division (HCD) has ordered the formation of a monitoring cell and monitoring committee to ensure the presentation of witnesses in the courts, particularly in the Women and Children Repression Prevention Tribunal cases. The HCD stated that the government will take the necessary steps to enact legislation protecting victims and witnesses.
Statistics and Witness Protection laws in Bangladesh:
From 2002 to 2016, the daily Prothom Alo undertook an exhaustive study of the cases heard by the Women and Children Repression Prevention Tribunals of Dhaka. In the research done, there were a total of 7864 incidents, 2604 of which were rape, gang rape, or homicide following rape.
According to the study, only 3% of cases resulted in a conviction for the accused. They claimed that 55% of cases were dismissed for lack of proper and adequate witnesses. Moreover, the defendant was acquitted solely because of witnesses. It is regrettable that our Law Commission filed a report recommending the enactment of the concerned law, after submitting drafts of the proposed Act in 2006 and 2011.
There are only a few statutes in our judicial system that guarantee protection for victims and witnesses. The 2013 Prevention of Torture and Custodial Death Act is one of the best laws. It provides comprehensive protection when in the custody of a law enforcement agency or governing body.
The Women and Children Repression Prevention Act of 2000
The Women and Children Repression Prevention Act of 2000 is another statute. Sections 9 (5) and 14 address the victim’s interest and protection. Section 14 of the Prevention of Human Trafficking Act-2012 makes it a separate offense to threaten or intimidate a victim or witness, as well as to obstruct the investigation or trial of a crime, with a maximum penalty of seven years.
Parliament passed a new Children Act in 2013 that thoroughly addresses the protection and legal rights of children in accordance with international standards. The International Crimes Tribunal Rules of Procedure, 2010, has an unique provision 58A that addresses the protection of witnesses and victims. Bangladesh’s accomplishment in ensuring the conviction of war criminals after nearly 40 years of independence is attributable to the country’s creative legislation.
Numerous nations have implemented a law protecting victims and witnesses, including the United States in 1982, the United Kingdom in 1999, Australia in 1994, Hong Kong in 2000, Colombia in 1997, Germany in 1998, South Africa in 1998, Italy in 2001, Pakistan in 2017, and Sri Lanka in 2015. India has taken the initiative to create legislation and develop “The Witness Protection Scheme 2018”, and the Delhi Provincial Government enacted legislation in 2015.
Moreover, on the advice of its Supreme Court, India enacted in 2018 “the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes.” Even in many Indian states, there are victim compensation programs. In 2008, the United Nations on the Drug Convention created a standard approach for witness protection. The 1985 UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power is also a landmark in the creation of such legislation.
On February 24, 2021, Children Charity Bangladesh (CCB) filed a writ case with the HCD asking to develop laws and a plan for the protection and compensation of victims of rape and sexual assault. In 2018, India’s Supreme Court devised a national plan to guarantee compensation for victims, which is an interesting development. In conclusion, I would assert that a comprehensive victim and witness protection law is urgently required in the current climate. The objective should be to safeguard victims and witnesses by granting them specific rights and privileges to ensure their appearance before investigating bodies and courts or tribunals to testify about the alleged crime without fear of intimidation or threat from the accused.
Defence and witness protection in Bangladesh:
As witnesses always have a realistic fear of being harmed by the defense, the free and truthful involvement of witnesses to testify before the court is primarily dependent on the protective and security measures supplied by the concerned court in any crimes tribunals. Since 2010, when Bangladesh began to prosecute war criminals, the security of witnesses has become a crucial issue that must be resolved through applicable state instruments and international experiences. In this regard, we shall examine the provisions for victim and witness protection in other international and hybrid tribunals, as well as the International Crimes (Tribunals) Act of 1973, which can be referred to as a subsequent edition of the proposed law on victim and witness protection.
The protection and assistance provisions for witnesses and victims in international and hybrid criminal tribunals.
The Statutes of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), the International Criminal Tribunal for Rwanda (ICTR), the International Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), and the Special Tribunal for Lebanon (STL) included provisions for victims and witness protection where the Rules of Procedure and Evidence included policies to implement those provisions of the statute.
International Criminal Court and witness protection in Bangladesh:
Article 68 of the Rome Statute of the International Criminal Court, for instance, states that “the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or permit the presentation of evidence by electronic or other special means,” noting that these measures should be implemented in the case of a victim of sexual violence in particular. Specifically, Rule 72, Rule 87, and Rule 88 of the Rules of Procedure and Evidence apply this statutory provision respecting in camera procedures.
These regulations govern, among other things, the appropriate use of in camera proceedings in accordance with the statute. In addition, they outline the in camera procedure for determining the relevance or admissibility of evidence related to consent in suspected crimes of sexual violence, as well as the precise procedures for requesting in camera proceedings and other available measures, including notice requirements.
All legislation contain provisions providing victim and witness protection and using clear language tying these protective measures to the accused’s right to a fair trial. For instance, the language of the statute may provide that the measures cannot be detrimental or conflicting with the rights of the accused.
A summary of victim and witness protection measures in various statutes and rules of procedure and evidence
ECCC strategy: It addresses a fairly wide direction that procedures must respect the rights of victims and the accused, and that the Court must take steps to protect victims and witnesses. (See Article 33 and Rules 12, 24, 25, 29, and 60 in particular)
Approach of the ICTY and ICTR: It contains a directive that procedures must respect the rights of victims and the accused, and that the Court must take precautions to safeguard victims and witnesses. Inclusion of explicit provisions for victim and witness protection in the Rules of Procedure and Evidence adopted by the courts. (See notably Articles 14, 19, and especially Article 21 of the ICTR legislation, Articles 15, 20, and especially Article 22 of the ICTY statute, and Rules 34, 53, 69, 70, 75, 77, and 79, ICTR and ICTY)
It grants the accused the right to a fair and public trial, subject to witness protection procedures. It also provides for the formation of a Victim and Witness Protection Unit. It further says that employment of prosecutors and investigators with experience in gender-related offences should be considered. (See in particular Articles 15, 16, and 17 of the Act as well as Rules 34, 69, 70, 75, and 79)
It grants the accused the right to a fair and public hearing, subject to witness protection procedures. It provides for the formation of a Victim and Witness Unit that offers protective services and allows victims to participate in legal procedures. It gives access to compensation for victims. It further stipulates that victim involvement and protective measures for victims and witnesses must be incorporated into the Rules of Procedure and Evidence issued by the courts. (See in particular Articles 12, 16, 17, 25, and 28 of the Act as well as Rules 50, 51, 52, 93, 116, 133, 137, 139, 159, and 166).
It contains extensive statutory provisions establishing the Victim and Witness Unit and defining the victim and witness protection obligations of the Prosecutor, pre-trial chamber, and trial chamber, which provide protective measures in cases of sexual violence. Includes particular safeguards for the protection of victims involved in help requests. (See specifically Articles 43, 53, 54, 57, 64, 75, 79, 87, and Article 68 of the Act as well as Rules 16, 17, 18, 19, 43, 72, 76, 81, 87, 88, and 112)
International Crimes (Tribunals) in Bangladesh:
Though the 1973 Act contains no provisions for witness and victim protection, the Rules of Procedure were amended in June 2011 to define the term “Victim” as “a person who has suffered harm as a result of the commission of the crimes specified in section 3(2) of the International Crimes (Tribunals) Act, 1973.” In addition, under the new Chapter VIA, a new Rule 58 A(1) on Witness and Victim Protection has been added, which states, “The Tribunal on its own initiative, or at the request of either party, may pass necessary orders directing the concerned authorities of the government to ensure the protection, privacy, and well-being of the witnesses and or victims.” This procedure will be confidential, and the opposing party will not be informed.” Subrule 02 was amended by the addition of provisions for the lodging of witnesses or victims, as well as other measures relating to a trial in camera and the maintenance of confidentiality, if a violation of such an undertaking is to be prosecuted under section 11(4) of the Act.
The effectiveness of these protective measures has yet to be demonstrated, particularly in regards to sexual violence witnesses. In addition to holding the trial in camera, the Tribunal should take further protective measures to encourage more witnesses to testify.
The proposed national law on victim and witness protection addresses numerous significant needs of members of this vulnerable group and recognizes the importance of support mechanisms that address the physical, psychological, and economic well-being of victims and witnesses who will testify before the court. In contrast to international and hybrid criminal tribunals, the proposed legislation does not contain complete provisions. Consequently, if we wish to secure the safety and security of witnesses of any crime in the future, we must adopt specific standards from international and hybrid tribunals that are consistent with and applicable to Bangladesh’s current socioeconomic environment.
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