60
Human Rights in Counter-Terrorism Investigations
Measures to protect witnesses in use in some countries include:
•
screening the witness from the view of the accused and the public gallery
in court;
•
giving evidence by means of video link;
•
giving evidence in private or anonymously;59 and
•
restricting the ability of the media to publish the names of witnesses or
any details that may lead to their identification.
Where the threat against a witness is substantial and specific, general security measures may not be adequate, and positive steps to protect witnesses
should be taken. Depending on the nature of the threat, these may range
from providing a guard when the witness travels to or from the court during
the trial, to relocation – either temporary or permanent – or to giving them
and their family a completely new identity. The latter measure is difficult to
achieve and requires specialist knowledge, resources and the legal co-operation of many agencies, as well as the willingness of the witness. 59
Relocation and change of identity are serious measures that should not be
taken without careful planning and without close consultation with the prosecutor. They are likely to be considered only where the testimony of the witness is crucial to the trial. Care must be taken to ensure that measures cannot
be misinterpreted as amounting to an inducement to testify. Unless meticulous attention is paid to all the arrangements, there may be the appearance
that the witness is not just being protected, but is actually being rewarded for
his or her evidence. This may gravely undermine the credibility of the witness and affect the fairness of the proceedings.
As well as keeping in mind the right of the accused to a fair trial, investigators and prosecutors must also take into account the witness’s right to life. If
they cannot be protected because a relocation or change of identity cannot be
afforded, not just in terms of financial cost, but also in terms of time or effort,
or if the logistical and legal means of doing so do not exist, then it may be
indefensible to use them.
59 Council of Europe Recommendation Rec(2005)10, op. cit., note 11; and Countering
Terrorism, Protecting Human Rights: A Manual, op. cit., note 19, pp. 178–181 and pp. 186–187.
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