The reality of victim and witness protection
Chapters 5 and 7 of the Criminal Procedure Code provides for witness protection measures which range from physical to psychological protection.
Witnesses may approach the prosecution and the court to apply for protective measures before and during trial (Article 55(1) of the CPC). They do so by submitting their application to the prosecution and court in a sealed envelope, which the prosecution and court shall both review and make a decision in their relevant areas (Article 55(2) of the CPC). The contents of a person’s application are confidential and disclosure of the same is prohibited (Article 55(2) of the CPC).
Most victims and witnesses at the early reporting stage have not assessed their protection needs. Some are not equipped to make the assessment without assistance. Others may not be facing a risk at the time of report, but at a later stage in the proceedings. The key issue with protection provisions under the CPC is that the onus is on the victim/witness to request for protection.
Currently, protection measures take around 2 - 3 weeks to be approved. Certain protection measures such as anonymity and confidentiality expire at the close of investigation and require reapplication before trial commences. On several occasions, requests for court-related protection were deferred to the Supreme Court, further delaying the process.
In spite of confidentiality and anonymity orders, in cases where high profile offenders were being tried, information and documents have been leaked, with no consequence.
The State should put in place a protocol for protection.
The onus should be placed on the State to assess every EVAW and criminal case for protection needs based on the profile of the litigants (status, relationship, power differentials, vulnerabilities and access to resources) and discuss potential measures with victims/witnesses.
The assessment should be made periodically during investigation and trial, it should extend to cover post-trial risks and it should consider the views and wishes of the victims/witnesses.
In high profile cases, protection measures should extend to other direct service providers and women human rights defenders, helping the victims and witnesses.
Certain categories of offences such as sexual offences, offences involving a weapon, offences involving high-profile offenders, offences involving a minor etc.. should trigger automatic protection without the need for the victim/witness to make an application.
As the objective of protection is preventative, victims/witnesses should not be required to produce evidence that they are at risk, if based on the facts of their complaint, they would reasonably be at risk.
Protection protocols should provide for chain of custody of documents in the case file.