Table of Content

• Comments
  • Purpose
    1. Article 165/a creates the institute of the witness with hidden identity, or as it is widely known in the international terminology, the anonymous witness.[1] This is not a completely new institute in the Albanian criminal procedure. Article 361/a paragraph 2 of Criminal Procedure Code, now amended, used to regulate the rules of the questioning of the persons (of course, questioning of the witness too) with changed identity, whose personal information were not known by the defendant and defense. This provision was also based on the Law No. 9110, dated 24.07.2003 “ On the organization and functioning of the serious crimes courts” and Law 10173, dated 22.10.2009 “On the protection on witnesses and justice collaborators” The novelty of the changes lies, first of all, in the fact that the institute of hidden identity witness is only applied in the case when a special protection law is not applied to it, secondly, the scope of action of this institute is limited and, thirdly, stronger rules have been introduced that restrict the use of anonymous witness testimony as evidence against the defendant. The primary purpose of this institute is to expand the possibilities for the effectiveness of criminal justice by guaranteeing the truthfulness of witness testimony in the case of some crimes posing a threat to society by keeping it out of the influence and pressure exerted by the perpetrators of these offenses or their associates.

     

    2. The purpose of the establishment of the institute of the anonymous witness goes beyond the protection of the witness. This institute impacts directly on the judicial economy, as it is efficient, fast and with a low financial cost. The procedure on the approval of the anonymous witness is much easier and direct than the procedure for accepting the witness in the special protection programs[2]. In many cases, the same purpose – witness protection – may be realized by hiding his identity, without consuming considerable financial or human resources, and without changing the life of the protected witness drastically[3]. From this perspective, hiding the identity of the witness may be considered as an efficient alternative of the special programs for the protection of witnesses and justice collaborators.

     

    [1] This term will be used hereinafter, in the commentary on article 165/a.

    [2]See for comparison Law 10173, dated 22.10.2009 “On the protection of witnesses and justice collaborators”

    [3]Ibid.

  • Scope
    3. Article 165/a regulates the conditions of allowing this evidence and the procedure of hiding and guaranteeing the identity of the witness. The manner of obtaining evidence from the statement of a hidden identity witness and the criteria for its assessment are provided by specific provisions of the CPC (see below, section IV, Related Provisions).
  • Comments
    4. The right for a fair legal process requires that in principle, the witnesses shall be identifiable, not only for the defendant but even for the court and the public in general. It is important to emphasize the fact that the concept of open justice may become, in special cases an obstacle for a successful criminal proceeding, especially in the cases of the criminal offences related to organized crime, the offences with terrorist purposes or serious crimes, in general. Witnesses may hesitate or may refuse to testify if the defendant or his collaborators know their identity, as they may undertake actions that endanger the health or the life of the witness, his family members or of the people related to him.

     

    5. Normally, the discussion about the type of protection that shall be offered to a witness should be elaborated between the judicial police and the prosecutor from the preliminary investigation phase. However, the causes and the circumstances that may lead to the necessity of hiding the identity of the witness may come up during the adjudication phase, too.

     

    6. As it was mentioned above[1], hiding the identity of the witness comprises an alternative of the special programs for the protection of witnesses and justice collaborators. Consequently, even the scope of article 165/a would be the same with the scope of Law 10173, dated 22.10.2009. Article 2 of this law stipulates that its provisions are applicable in the framework of the criminal proceedings for crimes committed intentionally, against which the law provides for the sentence sanctioning with imprisonment, as a minimum with not less than 4 years. However, the legislator has decided to limit significantly the scope of article 165/a. According to paragraph 1 of the article, hiding the identity of the witness is possible only for a limited and exhaustive number of crimes with terrorist purposes[2], organizing, participation and calls for violent military operations in a foreign state[3], and creation of organized gangs and the crimes committed by such gang[4]. This limitation weakens significantly the purpose of the institute generally, and specifically, its function as an efficient alternative of Law 10173, dated 22.10.2009.

     

    7. The conditions and the procedure with regard to hiding the identity of the witness are regulated in paragraphs 1 and 3 of article 165/a. The statement of the anonymous witness may be used as evidence in the criminal proceedings when the following conditions are fulfilled at the same time: 

    Firstly, when the defendant is investigated or tried for at least one of the offenses cited in the paragraph 1 of Article 165 / a; 

    Secondly, when it is believed that giving the testimony may risk seriously the witness or the members of his family regarding their life or health. 

    Thirdly, when the witness was not included in the witness protection program, pursuant to Law no. 10173 dated 22.10.2009 "On the protection of witnesses and justice collaborators". In case the witness is included in the programs of this law, the provisions of Article 165 / a can not be applied. 

    Existence of the above conditions during the preliminary investigation [5] phase is assessed case by case by prosecutor. As in the case where the identity of the witness is kept hidden from the stage of the preliminary investigation and when the need for obtaining his statement arises during the trial of the case, the prosecutor submits to the court a reasoned request to allow the implementation of special techniques of questioning, according to Article 361/b. The prosecutor's request is filed with the presiding judge in a sealed envelope with a noticeable note on it: "Confidential: a hidden identity witness". Within this envelope, the prosecutor also decides on a second envelope containing the full identity and full details of the witness, which allow accurate identification of the witness. At the prosecutor's request, it is reasoned why the witness should testify with hidden identity and what are the special techniques he proposes to ensure the preservation of anonymity. 

     

    8. The procedure for hiding the identity of the witness incorporates both purposes of article 165/a. On one hand it is simple and fast, and on the other it has guarantees for the protection of the identity of the witness. The court decides, by a reasoned decision, within forty-eight hours from the submission of the application. The decision is taken in the consultation room, only the presiding judge has the right to know with the identity of the witness, in any case, on the envelope must be clearly reflected the date and the identification data of the person who opened the envelope or who has get acquainted with his content and the time of such action. Before deciding on a prosecutor's request, the presiding judge shall have the right and obligation to carry out any necessary verifications as to the ability to testify[6] and the compliance of the person with the duty of the witness[7], as conditions without the application of which the claim can not be accepted. In the event of a request accepted by the court, the court establishes the pseudonym of the witness and sets out the rules for hiding the identity and the procedure for the notification, submission and attendance of the witness in the proceedings. At any stage of the trial, the witness holds a pseudonym that has been assigned by the court. When the anonymous witness is identified in the preliminary investigation phase, up to a court decision, he attends and signs the acts under the pseudonym appointed by the prosecutor[8]. The rules of Article 361/b are applied, which are believed to ensure the preservation of anonymity of the witness. In the case of refusal of the request, the prosecutor has the right to appeal to the court of appeal, which decides within forty-eight hours from receiving the acts. The appeal court's decision, which is also handled in the consultation chamber, can not be appealed.

     

    9. The questioning of the witness with hidden identity, as mentioned above, is carried out according to the rules provided for in Article 361/b. Paragraph 1 of this article was amended to facilitate the implementation of the special techniques of questioning, in the case of the witnesses with hidden identity. In this paragraph, the phrase “ex officio or upon the request of the parties” shall be interpreted with the request of the prosecutor, because, as we noticed it above, paragraph 1 of Article 165/a regulates that only the prosecutor has the right to request the court for the implementation of the special techniques of interrogation of the witness with the hidden identity. The court may determine special measures for the protection of a hidden identity witness. This includes the questioning in distance, by audio-video connection, use of techniques for changing the look and sound, and prohibition of questions that may reveal his identity. Regarding the rules of giving the statement, the same rules apply as to the questioning of the normal witnesses. After taking the oath[9], the anonymous witness is cross examined by the prosecutor and the defense[10]. Questions can also be made by the court, usually, after the parties have finished. The parties have the right to object, in whole or partially, to the contents of the statement, in accordance with the rules set out in Article 362[11]. Obtaining the statement of the hidden identity witness in violation of the prohibitions of the procedural law may result in its inadmissibility[12].

     

    10. Criteria for assessing the statement of the anonymous witness. It has to be clear that only the statement of the anonymous witness is not enough: to declare the defendant guilty the statement of the anonymous witness should be supported by other evidence confirming its authenticity. As it is noticed, the inability of the defense to investigate and question the personality of the anonymous witness is balanced by the regulation provided for in paragraph 3 of Article 390, which sets the value of anonymous statement in the same level of trust with the statements of the joint defendant[13]. It is understood that this rule of assessment is a strong guarantee in favor of the defendant, when in the process against him are called to testify hidden identity witnesses. This rule is in line with the Council of Europe Recommendation No. R (97) 13[14] and in ECHR jurisprudence (Doorson)[15].

     

    11. The fact that Article 165/a does not apply in the case of protected witnesses should not be interpreted as a possibility that in such cases the rules of anonymous testimony to be changed in disfavor of the defendant. For this reason, if the witness included in the protection program with changed identities will be summoned to testify, the rules and guarantees provided by the Criminal Procedure Code[16] and the ECHR standards will be applied (see section II. A).

     

    [1]See paragraph 2;

    [2]Articles 230, 230/a, 230/b, 230/c, 231, 232, 232/a, 232/b, 234, and 234It is important to emphasize the fact that not all the offences with terrorist purposes have been included in the scope of article 165/a;

    [3] Articles 265/a hyperlink, 265/b and 265/c of Criminal Code;

    [4] Article 234/b of Criminal Code.

    [5] See paragraph 8 of Article 165/a.

    [6] Article 155 of Criminal Procedure Code;

    [7] Article 156 of Criminal Procedure Code;

    [8] When the request of the prosecutor has been approved, the witness uses 2 pseudonyms: 1 for the phase of investigation and the other for the rest of adjudication phases. The second is the pseudonym that will be used until the end of all judicial procedures.

    [9] Article 360 of Criminal Procedures Code

    [10] Article 361 of Criminal Procedure Code

    [11] It is not only meaningless, but also in contradiction to the dialectical logic of discovering the truth in the process, the practice of some courts that allow to proceed with objection of testimony only after the witness leaves the room. This way does not allow the court to perceive the psycho-emotional reaction of the witness as he faces the statements made in the investigation phase and, on the other hand, does not give the witness the opportunity to change, even partly, the testimony given to the court.

    [12] Article 151 paragraph 3 of Criminal Procedure Code

    [13] See Article 152 paragraph 3 of Criminal Procedure Code

    [14] “12. Where appropriate, further measures should be available to protect witness giving evidence, including preventing the identification of the witnesses by the defense, for example by using screens, disguising the face or distorting the voice.

    13. When anonymity has been granted, the conviction shall not be based solely or to a decisive extent on the evidence of such persons.”

    [15] Doorson c/a Netherlands (20524/92), para 72

    [16] For this reason, the provisions of the special law should be revised in order to be brought in line with the provisions of the CPC.

  • Historic context
    12. As mentioned before, the CPC already provided the opportunity to use testimony of witnesses whose identity might have changed due to their status as justice collaborators and their placement into special witness protection programs. This possibility was provided by Article 361 / a paragraph 2 of Criminal Procedure Code before the amendments, which was based on the Laws no. 9110, dated 24.07.2003 "On the Organization and Functioning of the Serious Crimes Courts " and Law No.10173 dated 22.10.2009 "On the Protection of Witnesses and Justice Collaborators", before the amendments. So, the precondition for a witness to testify with hidden identity was his preliminary involvement in the protection program. Today, this situation has changed: the witness can testify with hidden identity even without being included in the defense program, a fact that allows decrease of costs. Over the years, the provisions in question were implemented in only one case[1]. However, our legal framework was in conflict with the principles developed in the case law of the European Court of Human Rights regarding the guarantees the defendant enjoys in cases where anonymous witnesses are used in the process against him. We should note that our procedural law assessed the anonymous testimony according to the same criteria used for assessing each testimony, while this institute is known to not allow the defense the opportunity to verify the witness’ personality and credibility. The changes that have been made aim precisely at approximating our procedural law to the best European standards.

     

    [1] Decision No.2, dated 03.04.2015 of the first instance serious crimes court, defendant Frroku (left into force by decisions No. 73, dated 29.06.2015 of the court of appeal for serious crimes and No. 00-2017-443 dated 08.06.2017 of the criminal chamber of the High Court: protected witness with changed identity, Arben Ndoka)

  • International acts
    13. In the international context, it is worth mentioning the provisions on the protection of the witness in the International Courts of Hague. For example, in their statutes and in the rules of the procedure and evidence, the International Criminal Court[1], the International Tribunal^[2] for the former Yugoslavia as well as the International Tribunal for Ruanda[3] contain provisions for the protection of the witnesses. The details of these provisions change but the essence is the same.[4] The rules of these three tribunals intent the common protection of the victims and witnesses, as the victims of the crimes against humanity, of the war crimes or of genocide are often the main witnesses in the respective judicial processes, too.[5] The three concrete tribunals have a special section which cares for the protection of the victims and witnesses. The measures that can be undertaken for the protection of the witnesses/victims vary from hiding the identity, such as from media or from the defendant, or from the records of the recordings of the Tribunals, until a pseudonym is given, or a hearing is held in camera and without the presence of the defendant. It is worth mentioning that the main principle of questioning anonymous witnesses is the facilitation of the position of the witness and the compliance with his rights. It should be emphasized that, when questioning anonymous witnesses, the court should make sure that the rights of the defendant and his procedural guarantees are respected.[6]

     

    [1] See Articles 43, 57, 64, 68 and 69 of Statute of Rome

    [2] See rules 34, 69 and 75 Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia.

    [3] See rules 34, 69, 75 and 79 75 Rules of Procedure and Evidence of the International Criminal Tribunal for the former Rwanda.

    [4]See Gert Vermeulen, EU Standards in Witness Protection and Collaboration with Justice, Maklu 2005, f. 53-65.

    [5]See in general Brianne McGunigle Leyh, Procedural Justice/Victim Participation in International Criminal Proceedings, Intersentia 2011.

    [6]See for an analysis in this aspect Michael E. Kurth, ‘Anonymous Witnesses Before the International Criminal Court’ at Carsten Stahn and Göran Sluiter, The Emerging Practice of the International Criminal Court, Brill 2008, f. 615-634.

• International standards/International references/Best examples

  Decision of the European Court of Human Rights 

  14. Article 6 (3) (d) of the European Convention on human rights stipulates that the defendant is entitled to face and to question witnesses, testifying facts in favor and also against him. Different issues faced in the legal practice of the questioning of the anonymous witnesses have created a considerable jurisprudence in the European Court of Human Rights. The institute of anonymous witnesses, in fact, limits the right of the defendant to question witnesses. However, as this is not an absolute right of the defendant, the questioning of anonymous witnesses does not constitute a violation of article 6 (3) (d) of the Convention, unless the following criteria are fulfilled: 

  • The defendant shall have been given the opportunity to question the anonymous witness against him, during the criminal proceeding. The questioning of the anonymous witness may be carried out in every phase of the process: during the preliminary investigation as well as during the phase of the adjudication (Lüdi; Unterpertinger; Kostovski);
  • The panel shall analyze the reasons for hiding the identity of the witness and shall reason the respective decision. The risk that threatens the witness may be subjective. The legitimized perception of the witness, that giving the testimony may risk him or his relatives, is sufficient to hide his identity (Doorson; Visser; Windisch)
  • If there is another way to protect the witness, which limits less the right of the defendant to question witnesses, then this way shall prevail towards hiding the identity of the witness (Van Mechelen);
  • The limitations regarding the rights of the defendant, which originate from questioning anonymous witnesses shall be compensated sufficiently during the process. The types of compensations in jurisprudence vary, but essentially they intend to give the possibility to the court – and if possible, but not necessarily, to the defendant or his defense lawyer , too – to observe the behavior of the witness during the questioning and to test his trustworthiness as a witness (Lüdi; Kostovski; Doorson)
  • Sentencing the defendant cannot be based exclusively or mainly on the testimony of the anonymous witness (Ellis and Sims and Martin).[1]

   

  15. Generally, we may say that the Albanian legal framework is in compliance with the above standards. As highlighted, the procedure for obtaining evidence from the statement of the anonymous witness, in essence does not differ from the statement of any normal witness. Our procedural law does not impose restrictions regarding the possibility of questioning the witnesses by the defendant, expect the cases when the question intends to disclose the identity of the witness. Furthermore, paragraph 1 of article 361/b provides sufficient discretion to the panel to take the necessary measures to guarantee, the protection of the anonymous witness on one hand, and – in the spirit of article 361 – testing the trustworthiness of the anonymous witness, on the other. The case laws shall be developed in this spirit. Also, paragraphs 4 and 5 of article 165/a compel the court to review the reasons of hiding the identity of the witness and to reason the respective decision. As emphasized above the criteria for the use of the testimony of the anonymous witness, as evidence against the defendant are very strict and in full accordance with the jurisprudence of ECHR.

   

  Reports, opinions, recommendations

  European Council of European Union, Prevention and control of organized crime: strategy of the European Union on the beginning of the new millennium (2000/C 124/01), March 27, 2000 1996 (English version http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000F0503&from=EN, last accessed on 26.07.2017);

  European Council of European Union, Resolution on the justice collaborators in the fight against international organized crime (97/C 10/01), December 20, 1996 (English version http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31997G0111&from=EN, last accessed on 26.07.2017);

  European Council of European Union, Resolution on the protection of the witnesses in the fight against international organized crime (95/C 327/04), 23^rd November 1995 (English version http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995Y1207(04)&from=EN, last accessed on 26.07.2017);

  Committee of the Ministers of the Council of Europe, Recommendation no. (2001)11 for the member states on the leading principles in the fight against organized crime (English version https://rm.coe.int/16804e603c, last accessed on 26.07.2017); 

  Committee of the Ministers of the Council of Europe, Recommendation no. (2005)9for the member states on the protection of the justice collaborators (English version https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805b0cf7, last accessed on 26.07.2017); 

  Committee of the Ministers of the Council of Europe, Recommendation no. R(97)13 for the member states on the intimidation of the witnesses and the rights of the defence (English version https://rm.coe.int/16804c4a0f, last accessed on 26.07.2017);

  [1]Unterpertinger v. Austria, 24/11/1986, Application no. 9120/80;Kostovski v. the Netherlands, 20/11/1989, Application no 11; Windisch v. Austria, 27/9/1990. Application no 12489/86; Application no 12433/86;Doorson v. the Netherlands, 26/3/1996, Application no 20524/92;  Application no 21363/93; Visser v. the Netherlands, 14/02/2002, Application no 26668/95;Ellis and Sims and Martin v. the United Kingdom, 25/04/2012, Application no 46099/06.

• Legislative material
  No Comment
• Related articles

  Constitution: Articles 31/d and 32 paragraph 2;

  ECHR: Articles 6, the right for fair trial;

  CPC: Articles 151 paragraph 3, 153-161, 164 – 165, 152 paragraph 3, 360, 361, 361/b, 362, 390 paragraph 3;

  Law No. 10173, dated 22.10.2009 “On the protection of witnesses and collaborators of justice”: Article 2, 10 and 12Law No. 9110, dated 24.07.2003 “On the organization and functioning of the serious crimes courts”: Article 8.

• Sublegal acts
  No Comment
• Decisions

  Decision No.2, dated 03.04.2015 of the first instance serious crimes court, defendant Frroku (left into force by decisions No. 73, dated 29.06.2015 of the court of appeal for serious crimes and No. 00-2017-443 dated 08.06.2017 of the criminal chamber of the High Court: protected witness with changed identity, Arben Ndoka). 

  Decision of European Court of Human Rights 

  Doorson v. the Netherlands, 26/3/1996, Application no. 20524/92;

  Ellis d Sims and Martin v the United Kingdom, 25/04/2012, Application no. 46099/06;

  Kok v. the Netherlands, 4/7/2000, Application no. 43149/98;

  Kostovski v. the Netherlands, 20/11/1989, Application no. 11;

  Lüdi v. Switzerland, 15//6/1992. Application no. 12433/86

  Unterpertinger v. Austria, 24/11/1986, Application no. 9120/80;

  Van Mechelen and the others v. the Netherlands, 23/4/1997, Application no. 21363/93;

  Visser v. the Netherlands, 14/02/2002, Application no. 26668/95;

  Windisch v. Austria, 27/9/1990, Application no. 12489/86.

• Literature

  Gert Vermeulen, EU Standards in Witness Protection and Collaboration with Justice, Maklu 2005

  Brianne McGunigle Leyh, Procedural Justice? Victim Participation in International Criminal Proceedings, Intersentia 2011

  Michael E. Kurth, ‘Anonymous Witnesses Before the International Criminal Court’ at Carsten Stahn and Göran Sluiter, The Emerging Practice of the International Criminal Court, Brill 2008.

• Archive
  No Comment