OSCE mission report (July, 2003) on the first application of the witness protection legislation RS

Mission Monitors First Application of RS Law on Witness Protection

On 1 July, the Mission monitored a rape case before the Vlasenica Basic Court involving a 16-year-old victim.  On the date of the trial, the RS Law on Protection of Witnesses in Criminal Proceedings also officially entered into force.  The court applied ex officio Article 10(1) of the Law on Protection of Witnesses and removed the accused from the courtroom while the victim was questioned.  In accordance with the law, the defence counsel remained in the courtroom.

Mission monitors observed that the Court was not technically prepared for the application of the Law on Protection of Witnesses.  While the Law states the accused shall be permitted to follow the testimony simultaneously through audio-video means or be presented with a recording, the Court did not have any equipment with which to record the examination of the victim.  Instead, the Presiding Judge in the case provided the accused with a summary of the victim’s testimony.        

The European Court of Human Rights has found that, in cases involving testimony from protected witnesses, fair trial guarantees under Article 6 of the ECHR require that there be adequate safeguards in place to ensure a fair procedure.  By not having sufficient technical capacity, the procedural protections provided for defendants in the relevant Witness Protection Laws are undermined thereby jeopardising successful prosecutions.  This will be in particular relevance in relation to War Crimes and Organised Crime cases where the effective and correct application of witness protection provisions will be vital for securing witness testimony.