The court should protect the identity, not the statement of the protected witness

The decision of Skopje Criminal Court to exclude the public from the “27 April” case trial due to the hearing of a protected witness started one legal dilemma once again: what does the court protect – the identity or the statement of the witness. Undisputedly, it’s the identity, while the witness is examined in keeping with the regular process rules of the Law on Criminal Procedure, just like everybody else.

Author: Sashe Dimovski

Although in force since 2006 and with a significant number of nearly 200 cases with endangered witnesses thus far, the Law on Protection of Witnesses still causes problems in practice. The first one seems to be the attendance of the public during a hearing of a protected/endangered witness, pursuant to the terms stipulated in the aforesaid Law passed 12 years ago and amended on several occasions.

The decision of the Trial Chamber headed by Judge Dobrila Kacarska in the “27 April” case, to exclude the public during the hearing of the protected witness “S1” is a process violation of the provisions of the Law on Criminal Procedure (LCP), that the judges, despite the clear legal regulation, only involuntarily and with trouble object to.

When a protected/endangered witness is being examined, only the identity should remain secret, not the statement, which is public, just as the statements of all other witnesses, while the examination is performed in conformity with the provisions of the LCP, which allow direct and cross examination.

Questions related to sexual, racial, religious or other affiliation or personal questions that might reveal the identity are not permitted. However, in cases with these witnesses, the lawyers and the defendants are completely entitled to ask questions that might discredit the witness or his/her statement, thereby demanding that his/her statement should be overruled as evidence. Last but not least, judgment of conviction cannot be rested only upon such a testimony.

Article 228 of the Law on Criminal Procedure of 2010 ordains the following protection of protected witness at a main hearing, after such status has been given by the prosecutor in the preceding procedure:

(1) The public prosecutor shall deliver the motion for a special manner of examination of the endangered witness elaborated in writing and sealed in an envelope to the judge, i.e. to the Trial Chamber for review of the indictment along with the submission of the indictment.

(2) The court shall rule on the public prosecutor’s motion with a decision, within a period of 48 hours from the receipt of the motion at the latest.

(3) If the court approves of the public prosecutor’s motion, it shall establish the pseudonym of the endangered witness with a decision, if it was not established by then, as well as the special manner of participation in the procedure and examination. An appeal against this decision of the court shall not be allowed.

(4) The special manner of examination may include hiding the identity of the witness, and in certain cases, hiding the appearance of the endangered witness.

The manner of examination under a pseudonym with audio and video appearence, with blurred face and distorted voice, is prescribed in articles 229 and 230 of the LCP. According to these articles, minutes are signed under a pseudonym, the witness is in another room, his/her identity is known only to the public prosecutor and the Head of the presiding Trial Chamber, which has been appointed prior the testimony (but not the second judge and the jurors).

Article 229 of the LCP:

Examination under a pseudonym

(1) If the special manner of examination of the witness refers only to hiding personal data, the examination shall be conducted under a pseudonym, without specifying other data referred to in Article 219, paragraph 3 of this Law. As far as the rest of the examination is concerned, it shall be conducted according to the general provisions for examining witnesses.

(2) After the examination has been completed, the endangered witness shall sign the record with his or her pseudonym.

(3) Any person who learns of the information on the endangered witness in any capacity shall be obliged to keep them as classified information.

Hence, the Law on Criminal Procedure, which prescribes the right of publicity and exclusion of the public, precisely stipulates that the procedures are public, while article 354 of the LCP says that the public can be excluded if that is necessary in order to protect a state, military, official or an important business secret, preserve public order, protect the privacy of the defendant, witness or injured party, protect the safety of the witness or the victim and/or to protect the interests of a juvenile person.

Since this particular case does not meet any legal condition, and the Court hasn’t elaborated the reasons for excluding the public, this automatically means prohibition against using the statement of the protected witness given in the procedure – reaction of the Helsinki Committee for Human Rights, which believes that the procedure has been violated.

Upon publishing the decision on excluding the public, the Trial Chamber didn’t establish and elaborate the exact reasons for excluding the public laid down in article 354 of the LCP. The examination of a protected witness, in itself, cannot be a reason for excluding the public, simply because witness’ safety is endangered, thus they are put under protection and are examined in accordance with the provisions on examining a protected witness. Since the identity of the witness is protected and they are not examined directly in the courtroom, the safety of the protected witness is protected and guaranteed through audio and video devices with blurred face and distorted voice. That’s why the legislator hasn’t ordained exclusion of the public each time a protected witness is examined – reaction of the Helsinki Committee for Human Rights.

Apart from the process protection of the protected/endangered witness as laid down in the LCP and the Law on Protection of Witnesses, severe punishments are prescribed for unauthorized release of information and data on witnesses, collaborators to justice, victims in the capacity of witnesses and their close persons, which is an additional protection from revealing the identity of any type of witness, if examined in front of the public.

The person who contrary to this law will reveal the real identity, the home, the residence of the persons from article 2 paragraph 1 lines 1, 2, 3 and 4 of this law, as well as other information that can lead to their identification that could jeopardize the life, health, freedom, physical integrity or the property of bigger amount to the persons from article 2 paragraph 1 lines 1, 2, 3 and 4 of this law shall be punished with imprisonment sentence of minimum four years.

If the act from paragraph 1 leads to causing serious body injuries to the persons from article 2 paragraph 1 lines 1, 2, 3 and 4 of this law the perpetrator shall be punished with imprisonment sentence of minimum eight years.

If the act from paragraph 1 leads to death or suicide of the persons from article 2 paragraph 1 lines 1, 2, 3 and 4 of this law the perpetrator shall be punished with imprisonment sentence of minimum 15 years or with life imprisonment – article 42 of the Law.

In the 12-year practice with nearly 200 endangered/protected witnesses who have gone through judicial processes, many of them have been disputed and their credibility has been questioned.

In almost all cases, the protected witnesses are: prone to crime, asocial or troublesome individuals who, due to the problems they have involved themselves into, have become a subject to blackmail by Ministry of Interior’s bodies and have been forced to accept the role, present the statement drafted beforehand, so in return they can be freed from different or akin incriminating acts perpetrated by them and unfortunately, judgments are usually and solely based on statements of these witnesses – the analysis “The Protected Witness as an Instrument in the Macedonian Legal System” reads.

Thus far, there have been two cases in which the protected witnesses revealed their identity and confessed that they were fake witnesses instructed by the police. It’s a matter of the cases “Oreshe” and “Monster”. Cases in which judges have approved giving testimony before public are rare.

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