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The scientific article is devoted to the analysis of modern mechanisms of protection of participants in the criminal process against illegal encroachments. Special attention is paid to the practical experience of developed countries, where the mechanism for ensuring the safety of persons who contribute to the implementation of criminal justice can be taken as a model for the introduction of a similar effective system. It is emphasized that for many modern countries, the adaptation of the legislative framework regarding the creation of a simplified procedure for the selection and application of short-term security measures and a detailed procedure for long-term measures according to the standards of the program for the protection of participants in the criminal process remains relevant. The main shortcomings of the functioning of this institute in Ukraine and gaps in legislation are indicated. Attention was focused on the need to make organizational and procedural changes, in particular, the adoption of a new specialized law, as well as the definition of the appropriate procedural order for ensuring the safety of persons in the Criminal Procedure Code.
articipants in criminal proceedings are often physically and psychologically influenced in order to change their testimony or refuse to testify. Intimidation and violence against persons who facilitate the administration of justice are the most common means of undermining the criminal justice system, and the protection of such persons is a global problem in the fight against crime. Usually, unlawful influence on victims and witnesses is carried out during the pre-trial investigation, somewhat less often – during the trial. As a result of such actions, the victim or witness: refuses to give incriminating statements; changes the data before the reading; evades participation in investigative (search) actions or court proceedings; agrees to give incriminating statements only if security measures are applied to him [1].
Participants in criminal proceedings refuse to give incriminating statements due to threats or fears of illegal influence from the accused, which enables them to avoid criminal liability. However, despite the high probability of such a situation, it can be avoided through persuasion and the use of appropriate safety measures. The application of security measures to persons participating in criminal proceedings is, first of all, ensuring the opportunity for a witness or victim to freely testify in court about the circumstances of a criminal offense. The untimely application of security measures can lead not only to the refusal of victims to testify in court and from civil lawsuits, but also to the commission of other criminal offenses “provoked” by criminal proceedings against human traffickers [2].
The mentioned circumstances point to the search for optimal mechanisms for the protection of participants in the criminal process against illegal encroachments in order to adapt the best examples of them at the national level.
It is appropriate to analyze which measures to ensure the safety of persons participating in criminal proceedings are implemented in certain foreign countries, which of them are the most effective and can be implemented in other countries in order to prevent and eliminate various negative factors. In particular, the United States of America (hereinafter – the USA), Germany, France, Austria, Italy, Great Britain, and Canada have many years of experience in the field of ensuring the safety of persons participating in criminal proceedings.
One of the greatest experiences in this area has been accumulated in the USA, where there is an effective and reliable system of support for victims of criminal offenses and citizens who voluntarily cooperate with law enforcement agencies and are at risk of being assaulted by criminals [3]. According to the Comprehensive Crime Control Act, US law enforcement agencies, protecting the life of a witness, have the right to use a video recording of his testimony. At the same time, the court, if it was carried out in “state interests”, was given the right to accept such statements as evidence [4].
It should be noted that in the USA, according to state legislation, the protection of “special categories” of crime victims is provided. The Attorney General has the right to relocate a witness to a new place of residence and ensure the application of other security measures in relation to him, if it is a question of his giving evidence in favor of the Federal Government or the State Government during an official trial in relation to organized crime or other serious crime, provided that the Attorney General establish the probability of committing a crime or other offense with the use of physical force against a witness. According to his decision, such a witness can: issue new documents; pay out funds for vital expenses, in particular, related to a change of residence; provide assistance in employment; also apply other measures of physical and social protection, in particular, the prohibition of disclosure of information about the person. The Prosecutor General also has the right to decide on relocation to a new place of residence and the implementation of other security measures for family members and relatives of a witness whose testimony is essential for the administration of justice. In each individual case, the decision on a citizen’s participation in the Program is made by the US Secretary of Justice.
The experience gained and the well-developed mechanism of applying measures to ensure the safety of participants in criminal proceedings in the USA are a positive example for Ukraine. It is appropriate to pay attention to the fact that in the USA this system is not the exclusive prerogative of only one state body, but is multi-level. Both federal authorities and state authorities, individual municipal services take part in ensuring the safety of witnesses (the Marshals Service – directly implements measures aimed at ensuring the safety of witnesses; premises for resettlement of participants in the criminal process are provided by state authorities; authorities of counties and individual cities resolve issues regarding the employment of witnesses). Therefore, the establishment of norms in the US legislation on ensuring the safety of participants in criminal proceedings made it possible for law enforcement agencies to take appropriate measures so that witnesses do not change their statements, and their relatives or friends do not fear for their lives. In Germany, the regulatory framework for measures to ensure the safety of participants in criminal proceedings was formed much later than in the USA. At the same time, according to statistics, security measures are used in 400–500 cases annually in this country (about 1,000 people are subject to protection) [2]. The Witness Protection Program is quite effectively implemented in Germany, which provides for data on a person subject to protection, as well as the possibility of his transfer to a new place of residence. In particular, the following measures are provided to ensure the safety of witnesses: the use of video recordings of the statements of witnesses, especially children, victims of violent crimes; ensuring the confidentiality of personal data of witnesses at all stages of criminal proceedings; provision of legal assistance to victims and witnesses. A special group of the criminal police developed a concept of witness protection, which contains a description of measures to ensure their safety [5].
The direct mechanism for ensuring the safety of witnesses is regulated by the Act “On Harmonization of the Protection of Vulnerable Witnesses” (Zeugenschutz-Harmonisierungsgesetz (hereinafter – ZSHG)). According to Clause 1 § 1 ZSHG (“Scope of application”) of this Law, a person has the right to ensure security, without whose testimony establishing the factual circumstances in a criminal trial or finding out the location of the accused is significantly difficult or impossible, subject to obtaining the person’s consent and in the event threats to her life, health, freedom or personal property. The provision of personal protection under this Act is entrusted to police units or, in accordance with federal law (on the basis of state laws), to the relevant witness protection institutions (paragraph 1 § 2 ZSHG) [6].
In addition, the above-mentioned law defines: the main rights and obligations of units that carry out protection, in particular, the possibility of blocking or changing personal data about a person stored in state institutions, at their initiative (§ 4-5 ZSHG); grounds for cancellation of witness protection measures (§ 6 ZSHG); peculiarities of witness protection during the trial (§ 10 ZSHG); ensuring the protection of witnesses in prisons (§ 11 ZSHG). A witness protection officer may not divulge information about the measures taken (§ 3 ZSHG) [6].
Italy also has a positive experience in protecting participants in criminal proceedings. In particular, since 1996, a system has been in place in Italy, which makes it possible to obtain an image of one of the more than 1,200 witnesses who are subject to security measures during court hearings. All present, with the exception of the judge, can see the witness only from the back. Also, an additional line is provided from a separate room of the court for private communication between the witness and his lawyer. A certain, stricter procedure for working with documents belonging to persons cooperating with justice was also defined. It was later amended in 2001 to create a separate structure for the justice of collaborators within the witness protection program. The law establishes special mitigating circumstances for persons who are members of criminal organizations who cooperate with the investigation.
The special witness protection program is managed by the Italian Ministry of the Interior through the special Central Protection Office and through the Prokuratore Nazionale Antimafia. The decision on admission to the protection program is made by the Central National Commission (hereinafter referred to as the Central National Commission). Changes in the identification of a person must be approved by the Central Security Service, which is responsible for ensuring the implementation of witness protection measures [5].
In order to include a person in a special protection program, it is first necessary to obtain the permission of the prosecutor who conducts the investigation and the CSC, determines the degree of danger that threatens the person who cooperates with justice, the grounds for granting him protection, evaluates the significance and importance of his testimony based on the information, provided by the police and the prosecutor’s office. Depending on the specific dangerous circumstances in which a person finds himself, according to Italian law, various types of security and assistance measures are applied to him. Typically, such measures are 24-hour surveillance of the residences of persons cooperating with justice by the police. Such a measure is considered the highest and most expressive form of ensuring security.
The special protection program provides for the application of the following security measures for witnesses and other persons: placement of the person in a safe place; provision of armed escort during its movement; provision of monthly financial assistance, the size of which depends on the number of family members, corresponds either to the average subsistence minimum, or to the previous (before inclusion in the program) standard of living and state medical assistance; if necessary, production of new documents for the witness’s family members.
It is worth paying attention to the fact that in the USA, Germany and Italy, security measures are applied not only to persons who contribute to criminal proceedings, but also to their relatives. For this purpose, video conferencing capabilities have also been actively used recently.
Institutionalization of witness protection programs can be done in different ways. In some countries, the choice in favor of the police is natural, since witness protection is considered primarily the task of police authorities. In other states, the separation of the functions of witness protection and investigation is more important, guided by considerations of impartiality and seeking to reduce the risk that the prospect of inclusion in a protection program itself will lead witnesses to give false testimony dictated by the desire to help. In countries where the main task of witness protection is entrusted to the police, the responsibility for leading these programs rests with a senior official of the police department [6].
It is necessary to emphasize the importance of ensuring the isolation and autonomy (in organizational, administrative and operational relations) of the secret unit that is engaged in the implementation of the program from other police formations This not only means ensuring independence from police investigative units, but also serves as a guarantee of program integrity. programs. Austria, Germany, Canada, Latvia, New Zealand, Norway, Sweden are among the countries in which witness protection is carried out under the supervision of the police. In other countries, for example, in Bulgaria, Colombia, the Netherlands, the USA, witness protection programs are organizationally separated from the police and subordinated to the Ministry of Justice, the Ministry of Internal Affairs, the State Prosecutor’s Office or analogues of these agencies [6-8].
In some countries (Italy and Serbia), in which these programs are under the jurisdiction of the Ministry of Justice, they are implemented by an interagency body consisting of high-ranking representatives of law enforcement, prosecutorial, judicial and government structures, and sometimes civil society. The said body can make decisions on such issues as inclusion in the program or its termination, supervise the implementation of the program and submit its budget for government approval [6].
We would like to emphasize that the resettlement and change of personal data of witnesses and their family members within the framework of the protection program is a difficult and expensive matter. For the protected persons, especially for their family members, changing the lifestyle and following the established rules can be associated with great difficulties and lead to depression, as well as to other psychological disorders. Considering the impact on the lives of protected persons, as well as the financial costs to the program, resettlement and change of personal data is a measure of last resort.
Proper financing of security measures is especially important for the functioning of the relevant programs, which significantly affects the effectiveness of their application. Costs associated with the implementation of criminal defense programs vary in different countries and depend on the standard of living, population, crime rate, and other factors. The sums allocated by the state for the operation of such programs constitute a relatively small percentage of the total budget of law enforcement agencies [2,9].
In our opinion, the amount of funds allocated to the protection program should be sufficient for the effective functioning of the protection system and proportionally change depending on the criminogenic situation in the state or the increase in the efficiency of justice. For security reasons, information on budget allocations, operational costs and received benefits will not be specified during publication.
Therefore, the experience of foreign countries shows that the use of security measures leads to positive results and strengthens citizens’ trust in justice, encourages them to testify during criminal proceedings. Taking into account the experience of the countries described by us in the field of implementation of witness protection programs and other participants in the criminal process, it is appropriate to introduce and legislate witness protection programs in the practice of ensuring the safety of participants in the criminal process of other countries. The presence of such programs would become an effective means of increasing the effectiveness of combating crime, would give law enforcement agencies expanded powers to create special conditions to ensure the safety of participants in the criminal process.
The Law of Ukraine “On Ensuring the Safety of Persons Participating in Criminal Proceedings” is a special normative legal act that regulates issues of ensuring the safety of participants in criminal proceedings. Security measures include: personal protection; protection of housing and property by equipping them with fire and security alarm systems; change of apartment phone numbers and state license plates of vehicles; issuance of special means of individual protection and notification of danger; use of technical means of monitoring and listening to telephone and other conversations; visual observation in case of danger to life and health of persons taken under protection; visual surveillance in the event of a threat of violence or other illegal acts against persons taken under protection; replacement of documents and change of appearance; change of place of work or study; relocation to another place of residence; placement in a pre-school educational institution or an institution of social protection bodies of the population; ensuring the confidentiality of personal information; closed trial. In addition, in Part 2 of Art. 7 of the Law indicates the possibility of applying other security measures, taking into account the nature and degree of danger to life, health, housing and property of persons taken under protection, that is, the list of such measures is open [9].
The above list is complemented by security measures and other procedural options for protecting participants in criminal proceedings from unlawful influence provided for by the Code of Criminal Procedure of Ukraine. These include, in particular [10]: interrogation of a person and simultaneous interrogation of two or more already questioned persons in a court session by an investigating judge during a pre-trial investigation, including remotely (Part 1 of Article 225, Part 2 of Article 232 of the Criminal Procedure Code of Ukraine); identification without visual and audio observation of the person presented for identification (Part 4 of Article 228 of the Criminal Procedure Code of Ukraine); interrogation/identification by video conference during the pre-trial investigation (Article 232 of the Criminal Code of Ukraine) and procedural actions by video conference during court proceedings (Article 336 of the Criminal Code of Ukraine); interrogation of a witness, victim, or accused in court using technical means from another room or in another way that excludes the identification of a person, if necessary – with the creation of acoustic obstacles (Part 9 of Article 352, Part 2 of Article 353, Part 3 Article 351 of the Criminal Procedure Code of Ukraine); questioning of a witness in the absence of a certain questioned witness (paragraph 5 of Article 352 of the Criminal Procedure Code of Ukraine); interrogation of a person who is abroad, using a video conference or a telephone conference in the order of international legal assistance (Article 567 of the Criminal Procedure Code of Ukraine); removal from office of an official who, by virtue of his official position, can exert pressure on a person taken under protection (Article 154 of the Criminal Code of Ukraine – regarding a suspect or an accused); precautionary measures in the form of house arrest or detention (Article 176, Clause 3, Part 1, Article 177 of the Criminal Procedure Code of Ukraine – regarding the suspect or the accused); imposition by the investigating judge, the court of certain duties on a person when a preventive measure not related to detention is chosen for him (not to leave a certain populated place, refrain from communication with a specific person, not to visit certain places, wear an electronic means of monitoring, etc. (Parts 5, 6 of Article 194 of the Criminal Procedure Code of Ukraine); audio and video monitoring of a person, place, surveillance of a person or place, seizure, inspection and seizure of correspondence, seizure of information from transport telecommunications networks and electronic information systems, examination of publicly unavailable places, housing, other possessions of a person, establishing the location of a radio electronic device, etc. (Articles 258, 267–270 of the Criminal Procedure Code of Ukraine) [10].
It should be noted that currently only judicial control is provided for in the system of ensuring the safety of persons participating in criminal proceedings of Ukraine. On the other hand, procedures for internal impartial control of the actions or inactions of the authorities that appoint and the authorities that provide security measures have not been established. The implementation of such procedures should be regulated as part of the development and implementation based on international standards and best global practices of the program for the protection of participants in criminal proceedings.
Another shortcoming of the Ukrainian legislation in the field of ensuring security in criminal proceedings is that it does not contain provisions that provide for the interaction of bodies that make decisions on the application of security measures and bodies that implement such measures among themselves and with other authorized entities. In this regard, in Art. 10 of the Model Law of the United Nations Office on Drugs and Crime on the Protection of Witnesses states that: 1) protected persons are included in the Program after signing a Memorandum of Understanding with the Protection Authority; 2) The memorandum of understanding is not a legally binding contract and cannot be challenged in court; 3) The memorandum sets out the voluntary conditions that will be applied within the framework of the Program and contains at least the following information: conditions for inclusion in the Program; permitted general categories of protection measures set forth in Art. 9 (1); financial and other material assistance; the consent of the witness to comply with all the instructions of the defense body, including undergoing a medical examination and psychological examination; conditions that give the Protection Authority the right to exclude a person from the Program and others [11].
An important component of effective prevention of criminal offenses committed against participants in criminal proceedings is the creation of an effective system for ensuring their safety [12]. In our opinion, the specified task can be achieved in Ukraine in the case of: introduction of specific programs for the protection of participants in criminal proceedings in order to take into account the conditions and features of national legislation; creation of a special unit for the protection of participants in criminal proceedings, separated from the investigative bodies. It should be emphasized that Art. 20 of the Law of Ukraine “On ensuring the safety of persons participating in criminal proceedings” does not contain the detail necessary for correct law enforcement, which is provided for by the cited international standards. In particular, in Part 1 of Art. 20 states that “as a basis for taking measures to ensure the safety of the persons specified in Art. 2 of the specified Law, there are data that testify to the existence of a real threat to their life, health, housing and property” [13].
The presence of a real threat, in addition to threats and specific encroachments on a person’s life, health, housing and property, can be evidenced by the nature of the criminal offense being investigated, the importance of the testimony of the person threatened with danger, the characteristics of the person who poses a potential threat, and her connections. We believe that Art. 20 of the Law of Ukraine “On ensuring the safety of persons participating in criminal proceedings” does not contain a clear interpretation of the meaning of “real threat”, which is too general, leads to unjustified refusals of authorized persons to appoint protection measures, or, conversely, the appointment of protection measures to anyone , who will apply with the relevant application. In our opinion, this situation does not contribute to the achievement of the goal pursued by the legislator and the state in general.
From the analysis of the provisions of the Law of Ukraine “On ensuring the safety of persons participating in criminal proceedings”, it can be seen that the further procedure of individualization of the decision on the selection of specific protection measures is not regulated by this legal document. Instead, Part 3 of Art. 22 of this law only specifies that the body entrusted with the implementation of security measures establishes a list of necessary measures and methods of their implementation, guided by the specific circumstances of the case and the need to eliminate the existing threat [13]. At the same time, taking into account the content of the provisions of Recommendation Rec (2005) 9, the legislation of Ukraine must clearly define the criteria for the application of security measures, or a combination of the most effective security measures.
In general, in law enforcement practice, a distinction is made between short-term security measures, that is, those that are used in the event of the need to immediately eliminate a threat (personal physical protection, protection of housing and property, etc.), and long-term measures for long-term protection of a person (change of personal documents, change of appearance, change of location work and study, relocation to another place of residence, etc.). However, unlike most leading European countries, the mechanisms of their application in Ukraine are identical, which requires a review of the legislator’s approach to their regulation. It is logical that long-term security measures are much more expensive, the expediency of their application, type, nature, duration require an individual approach depending on the circumstances of the criminal proceeding, its importance, the person whose personal interests are threatened by danger, etc. In view of this, the application of a specific measure should be carefully planned by authorized subjects, the main role among which should belong to the prosecutor, who, according to Ukrainian legislation, carries out prosecutorial supervision in the form of procedural guidance at the stage of pre-trial investigation. In general, it should be noted that in Ukraine, the institution of ensuring the safety of persons participating in criminal proceedings is regulated by several normative legal acts. The special law that regulates this institution of criminal proceedings is outdated and does not meet the requirements of modern criminal procedural activity and European standards. Also, the Criminal Procedure Code of Ukraine contains almost no norms that would determine the subjects and the procedural procedure for ensuring the safety of persons participating in criminal proceedings. In view of what has been said, it is necessary to adopt a radically new profile law that will correspond to the current national legislation, the requirements of international treaties and the practice of leading democratic countries. The relevant procedural procedure for ensuring the safety of persons should also be provided for in the Criminal Procedure Code of Ukraine.
The experience of the leading European democracies shows that security measures are the most effective mechanism for protecting participants in criminal proceedings from illegal encroachments. Their effective application leads to positive results and strengthens citizens’ trust in justice, encourages them to testify during criminal proceedings. Taking into account the experience of the countries described by us in the field of implementing programs for the protection of witnesses and other participants in the criminal process, it is appropriate to introduce and legislate similar programs in other countries. Their presence would become an effective means of increasing the effectiveness of combating crime, would give law enforcement agencies expanded powers to create special conditions to ensure the safety of participants in the criminal process.
For many modern countries, the adaptation of the legislative framework regarding the creation of a simplified mechanism for the selection and application of short-term security measures and a detailed mechanism for long-term measures according to the standards of the program for the protection of participants in the criminal process remains relevant. Special attention needs to be paid to: early detection of threats to the safety of participants in the criminal process and timely neutralization of relevant threats; determination of risk assessment criteria for the individualization of a person’s needs in the application of security measures, or a combination of the most effective of them; approaches regarding the duration of security measures based on the interests of justice and the existence of threats to the person.
For Ukraine, it is necessary to adopt a radically new specialized law that will meet the current national legislation, the requirements of international treaties and the practice of leading democratic countries, in particular, it will determine the subjects and the procedural order for ensuring the safety of persons participating in criminal proceedings. The relevant procedural procedure for ensuring the safety of persons should also be provided for in the Criminal Procedure Code of Ukraine.
