Protection of Victim of Crime and Witness: State Responsibility

- Barrister M. Aftab Uddin

witness1

Published On - January 23, 2015 [Vol. 2, Jan - Jun, 2015]

Bangladesh became independent in the year 1971 after being ruled by Pakistan for about 24 years. Earlier the British ruled Bangladesh for about 200 years as a colonial part of the then British India. Almost all the statutes including the Code of Criminal Procedure of 1898, the Penal Code of 1860 and the Evidence Act of 1872 were introduced by then British Government ruling India, which were subsequently adopted by then Pakistan (Bangladesh being then known as East Pakistan) and thereafter, by Bangladesh. Those statutes are still in force with some changes, amendments, additions and deletions made from time to time. Those statutes lay down the general procedures for adjudication of criminal cases in Bangladesh. Apart from that there are some special laws are also in force[1]. Though there are many statutes and laws prevailing in Bangladesh to punish the offender but there is no law available till to date to protect the victim and witness. The victim of crime has got every right to attend his/her trial and depose. It is their fundamental right guaranteed under Articles 27 (Equality before law) and 31 (Right to Protection of Law) of the Constitution of the People’s Republic of Bangladesh.

It is no doubt that it is high time that we should seriously consider to enact law on witness protection in Bangladesh. In this regard apart from getting necessary help, cooperation and logistic support from the international communities, help and cooperation from local private and public sectors are also very much necessary for providing and developing the concept of witness protection in the developing countries as Bangladesh. A law relating to witness protection in Bangladesh is required for the purpose of carrying out effective and meaningful inquiry, investigation, prosecution and for the courts carrying out the trial. It is also required to protect the parties engaged in the criminal proceedings. Special funds/budget has to be allocated for the witness protection program.

The word victim has not been defined either in the Penal Code, 1860 or in the Code of Criminal Procedure, 1898 (hereinafter mentioned as CrPC). 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 offence. The word witness may be defined as any person including a child, who is or may be required to make a statement or give evidence or who has made a statement or given evidence, in any investigation or judicial proceedings in relation to the commission of an offence.

Much has been said by various organizations and persons connected with the field of legal arena for enacting a specific law providing for protection and certain rights and benefits for the victims and witnesses of criminal cases particularly involving crimes of grave and violent nature, when their life and property are endangered. But no specific law has yet been enacted nor has even a scheme or policy or program been made in our country for the rights and protection of the victims and witnesses before, during or after the trial of such cases. The victims and witnesses are also threatened and intimidated by using the subtle means of cross-examination during their deposition before the court thereby rendering the victims/witnesses helpless for lack of their sufficient right to protect themselves under such circumstances although the victims and witnesses should be able to speak before the court to narrate the entire incident in a free atmosphere without any embarrassment. In such a position, some arrangements need be made for the victims and witness to feel free in court at the time of giving his/her evidence.

The rights, benefit and protection to be given to the victims and witnesses shall include, among others, counseling and financial support, security, transport facilities, medical treatment and other facilities to ensure the security of the victim and witnesses so that they can depose truthfully and fearlessly before the court.

In the premise, necessary law and/or rules could be made providing for the rights, privileges and protection of the victims and witnesses and where necessary their family members. The rights of the victim shall be to ensure that justice is done more often and more quickly and to empower them to give their best evidence in the most secured environment possible.

According to section 545 sub-section (1) of CrPC the trial courts pass an order to pay expense or compensation out of fine to any person or his legal heirs for any loss or injury caused by the offence. This provision is not mandatory and being rarely used by the Court. To ensure compensation for the crime victims this provision should make mandatory.

Need for a law on various aspects of witness protection- apex court’s observations:

In recent times, it has become very common for witnesses in criminal cases to turn hostile on account of danger to their life and property or to that of their relations consequent upon threats or intimidation by the accused. The Supreme Court of India in recent several Judgments[2] has dealt exhaustively with the subject of ‘Witness Anonymity’ and ‘Witness Protection Programmes’. The Supreme Court has also stated that Parliament must consider making a law on the subject at the earliest. In view of the above observations, the Law Commission of India has taken up the subject of ‘Witness Anonymity’ and ‘Witness Protection’, suo motu, and decided to come forward initially with a Consultation Paper along with  questionnaire seeking responses on various aspects.

Protection of witnesses: laws in various countries:

To start with, it will be useful to refer to the UN Convention in regard to Witness Protection. There is a United Nations Convention Against Transnational Organized Crime. The purpose of this Convention is to promote cooperation to prevent and combat transnational organized crime more effectively. Article 24 of the Convention deals with protection of witness wherein the State Party shall take appropriate measures within it means to provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings who give testimony concerning offences and, as appropriate for their relations and other persons close to them.

Article 68(1) of the Rome Statute[3] provides that the Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. The Rome Statute, the Rules of Procedure and Evidence and the Regulations of the Court and of the Registry contain important provisions for the protection and support of victims and witnesses. These provisions are key for the successful functioning of the Court, aiming to ensure that victims can participate in proceedings and witnesses testify freely and truthfully without fear of retribution or suffering of further harm.

In Australia, the Parliament of Victoria has enacted ‘Witness Protection Act, 1991’ (Act 15 of 1991), for the purposes of facilitating the security of persons who are, or have been, witnesses in criminal proceedings. The Act was amended in 1994 (No. 28/1994) and in 1996(NO. 58/1996).

In Queensland, the Crime and Misconduct Commission (CMC) administers the Witness Protection Programme. This programme provides protection to persons eligible under the Witness Protection Act, 2000.

In South Africa, ‘Witness Protection Act, 1998’ is applicable for the purpose of protection of witnesses. An office known as Office for Witness Protection is established.

In Hong Kong, the Witness Protection Programme is established under Witness Protection Ordinance (67 of 2000). As per the Ordinance, the approving authority (person designated in writing by the Commissioner of Police and the Commissioner of Independent Commission Against Corruption) is required to establish and maintain the Witness Protection Programme.

In Canada, ‘Witness Protection Programme Act, 1996’ (C.15) has been enacted. The Act is enacted to provide for the establishment and operation of a programme to enable certain persons to receive protection. As per sec. 2, ‘protection’ is defined as including relocation, accommodation and change of identity as well as counseling and financial support.

The Portuguese, legislation (Act No. 93/99 of 14th July, 1999) deals with the provisions governing the enforcement of measures on the “protection of witnesses” in criminal proceedings where their lives or physical or mental integrity, freedom or property are in danger due to their contribution to the collection of evidence of the facts which are subject to investigation. These measures may also cover the witness’s relatives and other persons in close contact with them.

In Philippines, an Act (which came into force from 24.4.1991), namely ‘Witness Protection, Security and Benefit Act’ (Republic Act No. 6981) is applicable. It provides witness protection, security and benefit under a programme.

In the United States Code, Title 18, Crimes and Criminal Procedure, at part I crimes, in chapter 73 (obstruction of justice), there is provision for issuing a temporary restraining order prohibiting harassment of victim or witness in Federal Criminal Cases.

Czechoslovakia is having a law on the special protection of witnesses and other persons. In this regard amendment to the Penal Programme Code was adopted by Act No 141/2001 which came into force in 2001. The fundamental goal of this Act is to secure adequate legal regulations for the special protection of witnesses against all forms of direct or indirect threat, pressure or blackmail in connection with the penal action. The Act includes an all-embracing protection of witnesses in the most serious cases of criminal activity, especially organised crime. A special programme of protection has been prescribed for witnesses who are threatened under that programme. They will be provided with personal protection, protection of dwelling, movement within the Czech Republic and abroad, help in finding work, social help, and in the more serious cases, disguised identity.

The Republic of Korea enacted its Witness and Victim Protection Law on 31st August, 1999 which came into force in June, 2000. The law covers not only the victim or the witness, but also extends protection to their families. If there is a possibility that a witness may be the target of retaliatory action, his name may be kept confidential and he may be given police protection. When the witness or victim sustains financial loss as a result of the crime or the investigation, he may be granted relief money for the loss suffered. And in the event there is a need for such witness to transfer his residence or secure new employment, he may be furnished some assistance at government expense.

Japan has evolved a comprehensive Witness Protection Programme under its Code of Criminal Procedure (CCP) which was amended on 18th August, 1999 and 19th May, 2000. Under section 96.1(4) in relation to section 89(5) of the CCP, an accused may be denied bail if there is reasonable ground to believe that he may threaten or may actually injure the body or damage the property of a victim or of a witness or relative of the victim/witness. According to CCP, in order to maintain order in the court, or when the judge believes that a witness will be unable to fully testify due to the presence of the accused or of spectators, the court may order such accused or spectators to withdraw from the court room during the examination of the witness.

In Netherlands an Act known as Witness Protection Act (Act of 1 of 1994) was enacted by the Parliament. Prior to this Act, the Supreme Court formulated the conditions under which anonymous witness statement could be used in evidence in criminal cases. Many of these conditions can be found in this Witness Protection Act.

Protection and support of victim of crime

The testimony of a victim in a crime of violence is often the best and the only evidence that can be obtained against an accused. It is therefore incumbent upon the State, in fulfillment of its duty of meting out justice, to ensure that victims who would be witnesses are protected against the threats and the intimidation, psychological and physical, of the associates of the accused. The victim’s special status needs to be recognized. The State is best equipped to provide protection and security to victim and thereby protect their human rights.

Currently in this sub-continent, neither in India, Bangladesh and Nepal nor in Sri Lanka have a distinct law, policy, guidelines or programs to protect victim witnesses before, during or after the trial. Though some existing laws (penal codes, criminal procedure codes and constitutions) refer to witness protection, provisions appear to be insufficient to adequately protect women and children victim witnesses who have been trafficked for sexual exploitation.

One school of thought justifies compensation in the criminal process in terms of the aims of sentencing. The Widgery Committee in United Kingdom had listed several views about the rationale of the concept of compensation, namely, ‘benefit to the victims, possible deterrent effect on the offender or on the public, the possible educative or preventive effect on public morality, the possible reformative effect on offender, its effect depriving the offender of ill gotten gains and the view that compensation has an intrinsic moral value of its own.’ The Law Reform Commission of Canada also was of the same view holding that compensation was consistent with the ‘core values’ of the community.

The proponents of state compensation justify it as another form of public assistance for the disadvantaged and a medium of fulfillment of neglected state obligation to its citizens. The state has a humanitarian responsibility to assist crime victims. The assistance is provided because of the social conscience of the citizens and as symbolic act of compensation. The state is responsible to maintain law and order, ensure peace, harmony and tranquility in society, to use force to suppress crime and punish offenders to protect people and their property. If the law and order machinery of the state, police is negligent or unable to prevent crime, the state is responsible to make reparation to the victims. In addition, state compensation is also considered as a matter of social justice to crime victims, as the state system namely, it’s political, economical and social institutions; generate crime by poverty, discrimination, unemployment and insecurity.

The need for compensating victims of crime was reiterated by UN Agencies also. The General Assembly of the United Nations in its 96th plenary meeting on 29th November 1985, made a Declaration of Basic Principles of Justice for Victim of Crime and Abuse of Power, recognizing that millions of people throughout the world suffer harm as a result of crime and the abuse of power and that the rights of these victims have not been adequately recognized and also that frequently their families, witnesses and other who aid them are unjustly subjected to loss, damage or injury. The Assembly affirms the necessity of adopting national and international norms in order to secure universal and effective of respect for, the rights of victim of crimes and abuse of power. It was also declared that offenders or third parties responsible for their behavior should, where appropriate, make fair restitution to victims, their families or dependants. The declaration defines victim as ‘persons who, individually or collectively, have suffered harm, including physical and 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 with the Member States, including those laws prescribing criminal abuse of power’. The Declaration states, when compensation is not fully available from the offender or other sources, States should endeavor to provide financial compensation to (a) victims who have sustained bodily injury or impairment of physical or mental health as a result of serious crimes (b) the family in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization. Having considered the need for a common outlook and for common principles to inspire, guide and protect the victim of a crime in the protection and enhancement of the human environment, and to meet the end of justice.

The Law Commission of Bangladesh has made a final report in 2007 along with a draft bill on a proposed law relating to payment of compensation and other relief’s to the crime victims as well as a final report dated 2011 on a proposed law relating to the protection of victim and witness in grievous offence(s) which is now pending for the consideration of the Government. Therefore, considering all, justice demands to ensure the protection of the victim and witness by the State and hence specific measures should be taken by the State and wherever applicable in assistance with nongovernmental organization.

Way forward: State Responsibility on Protection of Victim of Crime and Witness   

  1. Necessary law and/or rules should be made providing for the rights, privileges and protection of the victims and witnesses and where necessary their family members.
  1. Victim or witness to a crime as the Court deems fit who has reason to believe that his or her safety or the safety of any member of his or her family is or may be threatened before, during or after the investigative or judicial proceedings by any person or by the accused or his or their associates, whether known or unknown, by reason of his or her being a victim or a witness, may report or cause the sending of a report of such belief to the Court or investigating officer of the concerned proceeding or to the officer-in-charge of the police station where the criminal case has been or is likely to be instituted or to the public prosecutor or to any member of the office and apply for his/her being placed under protection. Any person, to whom a report is made as above, shall assist the applicant in making an application to the Court for protection and shall forthwith submit the application to the Court for its consideration and necessary order.
  1. The Chief Judicial Magistrate/Chief Metropolitan Magistrate on receiving the application from the victim/witness on his own initiative shall consider the nature and circumstances of the case and make an order for sending the victim and/or witness and if necessary their dependents, to a place of safety.
  1. The protected person shall have a place of safety with a secured housing facility with the satisfaction of the Court until he/she has made the statement in any investigative proceeding or testified or until the threat, intimidation or harassment disappears, whichever occurs later.
  1. The protected person whenever practicable should be assisted in obtaining a means of livelihood and shall be entitled to a financial assistance from the state for his/her support and that of his dependent family in such amount and for such duration as the Court shall determine.
  1. The witness shall be provided with reasonable travelling expenses and subsistence allowance by the State, in such amount as the office may determine for his/her attendance in and return from the Court or Tribunal for giving his/her testimony as well as in attending the interviews with prosecutors or investigating officers. Section 544 of CrPC and relevant Rules made thereunder needs to be amended accordingly.
  1. The protected victim and witness shall be provided with free medical treatment, hospitalization and medicines for any illness or injury suffered by him/her during his/her stay in the place of safety or because of his/her witness-duty, in any private or public hospital or clinic at the expense of the office with full security protection.
  1. The Court by an order can terminate the protection of a protected person, if the presiding Judge is of the opinion that the safety of the protected person is no longer threatened and a satisfactory alternative arrangement has been made for the protected person.
  1. In the case of the commission of an offence of rape, kidnapping or abduction or trafficking of any woman or child is reported to a police station, the Office-in-Charge of the concerned police station or any other officer not below the rank of sub-inspector, shall record the details of the incident as reported and then shall rush to the place of occurrence to rescue the victim as quickly as possible. After the rescue of the victim in case of a woman, her identity shall be kept confidential and shall not be disclosed to the public or media by any police officer or constable or any person associated with or connected to the rescue operation. In identifying offenders immediately after rescue the identity of the victim and the complainant/informant shall be kept confidential and their faces shall be concealed or a black screen shall be set up during the identification parade.
  1. The registered non-Government organizations and representative of the local Government may be called for, if available, without wasting time during police raid on any brothel house or any other place. Every police station may maintain a list of female social workers who may be of help in rescuing the victim. The authority shall notify that it shall be mandatory for each police officer to initiate and personally supervise the rescue operation immediately after receiving information of such an occurrence.
  1. The victim shall be separated from the accused after his/her rescue. A social worker or support person, preferably a female, in case of a female victim, shall be required to be present when the victim girl or woman is being interviewed by a police officer or officers after the rescue. The statement of the victim shall be taken by a police officer not below the rank of sub-inspector. The victim shall be treated during the making of a statement and/or interview with respect and dignity by the police officer keeping in view that the victim is not an accused person. The office shall at its cost arrange to give the victim counseling by qualified counselor, if necessary, immediately after rescue.
  1. The victim shall immediately be taken to a place of safety and the office shall get him/her examined by a doctor immediately after the rescue.
  1. The victim who apparently appears to be a minor shall be kept at a special facility for juveniles in need of care and protection and shall be produced before the nearest Magistrate within twenty-four hours.
  1. In case of age verification and for determining sexual abuse, if any, the police officer shall, after rescue of the victim, produce the victim before a medico-legal expert recognized by the relevant authority for determination of his/her age, detection of any injury or sign of violence or resistance as a result of sexual abuse or rape. If the victim is a girl or woman, a female social worker recognized by the relevant authority or a female member of the victim’s family or a female lawyer of the victim’s choice shall remain present in the room where the victim is medically examined. In case of any complaint of an indecent activity in the medical examination, a second opinion may be sought for the benefit of the victim.
  1. Protection and other facilities for the victim as explained in the above recommendations should be provided by the government by establishment of an organization under the Ministry of Home Affairs/Ministry of Women and Children Affairs.
  1. To implement the above recommendations Sub-section (2) of section 554 of Cr.PC be amended by empowering the Hon’ble High Court Division to make rules for other purpose by adding ‘any other matter which is required to be, or may be, prescribed’ from time to time[4].
  1.  Section 171 sub-section (2) of CrPC should be amended by inserting a provision of departmental action where the police officer failed to ensure appearance of the complainant or the witness.
  1. The rules made under section 544 of CrPC for the payment of expenses of complainants and witnesses should be amended for the payment of reasonable amount according to the present market price for each day for witnesses attending trial in criminal courts.
  1. In section 545 sub-sections (1) of CrPC the word ‘shall’ should be substituted instead of the word ‘may’ to ensure that the trial courts pass an order to pay expense or compensation out of fine to any person or his legal heirs for any loss or injury caused by the offence.
[1] such as, Special Powers Act, 1974, Nari O Shishu Nirjatan Daman Ain, 2000, Acid Aporadh Daman Ain, 2002, Money Laundering Protirodh Ain, 2009, Santrash Birodhi  Ain, 2009, Paribarik Sahingshota (Protirodh & Surokkha) Ain, 2010 etc.
[2] Namely in the NHRC v. State of Gujarat 2003(9) SCALE 329, PUCL v. Union of India 2003(10) SCALE 967, Zahira Habibulla H. Sheik and Another v. State of Gujarat 2004 (4) SCALE 375 and Sakshi v. Union of India 2004 (6) SCALE 15.
[3] International Criminal Court (ICC) has been established by the Rome Statute and Bangladesh has been signed and ratified the Rome Statute.[4]Section 477 of the Indian Code of Criminal Procedure 1973 provides power of High Court to make Rules.

About The Writer

Article Author Image

Barrister M. Aftab Uddin

Advocate, Supreme Court of Bangladesh

The writer is Former Advisor of UNDP Bangladesh.

aftabtapan@gmail.com

Share:  



Welcome To "Law Journal BD"

Rafiqul Haque

“Law Journal BD” is a timely and innovative step towards the growth and development of law. The Journal is a combination of articles from experts which will broaden the scope of our legal instrument and jurisprudence. I sincerely hope the initiative will help the lawyers to be more informed & committed to struggle for justice. It would be more appropriate to consider it as a work of compilation of contributions from various jurists, practitioners and academicians. The “Law Journal BD” publishes articles on all aspects of law.

I deeply appreciate the efforts of the Editor and the whole team of “Law Journal BD”. It is a great contribution to Bangladesh judiciary. The journal publishes articles on all areas of law and I believe the articles will be very helpful to researchers, legal scholars, practitioners, law consultants and moreover to Law students. I am really thankful to both , who are contributing their valuable articles for publication and who are reading the articles for enhancing knowledge of law.


Thanks to all the readers of “Law Journal BD”.


Barrister Rafique - Ul Huq

Senior Advocate, Supreme Court of Bangladesh

Chief Advisor, “Law Journal BD”

Mahfuzur Rahman

The “Law Journal BD” is the first Online Law journal in Bangladesh which specifically publishes law articles only. You will find here different kind of research based articles on various Law topics. The primary function of the journal is to publish lengthy comprehensive treatments of articles generally written by law academicians, Judges, or legal practitioners. A significant feature is that the distinguished writers analyze judicial decisions, contemporary developments of law, legislation and current law reform.

The important features of the journal are the sections of Book Review and Biography of renowned person in legal field. The articles are published as a six months volume & then it will be found in the “Previous Publications” section. The “Law Journal BD” has the efficient team of learned advisors and experienced team of editors. All articles are subjected to a rigorous editorial process in order to strengthen substance, polish tone and ensure citation accuracy.



We thank you sincerely for reading “Law Journal BD”.


Barrister Md. Mahfuzur Rahman (Milon)

Advocate, Supreme Court of Bangladesh

Editor, “Law Journal BD”