#14 - JRL 7188
Absence of Russian Law Protecting Crime Victims, Witnesses Deplored
15 May 2003
Commentary by Yuriy Feofanov, columnist:
The prosecutor was in shock, as they say. His most reliable witness had suddenly changed his testimony. In a photo array, in a lineup, and at the preliminary hearing, he had identified this man without hesitation, confirming every detail of the man's presence at the scene of the crime.
In court, however, avoiding the defendant's eyes, he categorically declared: "No. That is not the man. He resembles him, but he definitely is not the same man. That man...." The prosecution's case was falling apart. The attorney started firing questions at the witness right away: "You must have been coerced...." After the trial was over, after the case had to be dismissed, the prosecutor asked why he had changed his testimony: "Were you threatened?" The witness replied: "Well, not exactly.... How can I explain this to you? The threats were not specific, but they were threats." The witness had run into three men, who "looked like criminals," outside his front door. The next day he saw them again. They pointed at him, but did not approach him. At home, his mother-in-law told him about a strange telephone call: "The caller asked, 'Does Petyusha go to School No 35?' I asked, 'Who is this?' The caller replied, 'Give my regards to your son-in-law. He will guess who it is.'" The witness did guess who it was....
This was an actual case. Unfortunately, it was not an isolated case. This has become the norm, putting the whole judicial system in jeopardy. Statistics were cited at a "roundtable" in the Federation Council: 10 million people witness crimes each year, and one out of every four (in other words, 2.5 million!) changes his testimony: Witnesses say one thing to investigators and another thing in court. The prosecution's charges become untenable up if they are based solely on witness testimony. This happens all the time. In the past, if a witness refused to testify during a trial, the record of the preliminary investigation was read in court, and the court then decided who was telling the truth. According to the new provisions of procedural law, however, only testimony presented in court can be admitted as evidence. The criminal underworld, which is now just as well-equipped and organized as the law enforcement system, was quick to take advantage of this. One method of influencing witnesses has already been described. There was no direct threat: Who were the men that "looked like criminals," and how could a "link between the phone call to the mother-in-law and the court case" be established? Legal experts are proposing new legislation to eliminate the uncertainty of some provisions with regard to witness protection in the new Code of Criminal Procedure.
Their recommendations explicitly state that, in addition to prohibiting direct threats, murders, the exposure of children to danger, and so forth, the law should protect witnesses and victims from "silent harassment": the ostentatious photographing of witnesses and victims, the appearance of people with a threatening demeanor near their homes, disturbing telephone calls, etc. The whole problem now is that the law provides for the prosecution of threats that are "carried out," but it is virtually powerless to take preventive or preemptive measures against individuals clearly communicating their intentions to the witness. To this end, law enforcement agencies would have to monitor telephone calls more extensively, take pictures of individuals posing a potential threat to witnesses, and use other technical means. Of course, these measures are unlikely to intimidate crime gangs determined to get "their people" out of trouble. The witness has to be protected in such a way that he is inaccessible to criminal pressure. This has been done, but not in our country.
A law was passed back in 1970 in the United States on the monitoring of organized crime gangs, and then a law was passed on the protection of crime victims and witnesses, which stressed that the normal functioning of the judicial system would be impossible without "cooperation" with crime victims and witnesses. In essence, this cooperation presupposes the questioning of witnesses in ways precluding their identification by the defendant. They include depositions under an assumed name, the alteration of physical appearance, changes of address, and anonymous complaints. Furthermore, the records of trials and investigations can be kept confidential.
It is true that numerous procedural barriers would have to be surmounted for this purpose. The fundamental principles of criminal procedure could not be compromised: open, oral, and adversary proceedings, and the suspect's right to mount a defense, including the right to question his accusers.
The barriers have been surmounted "there," however: Most of the countries in Europe and Latin America, Japan, Australia, and even some African countries followed the example of the United States and reformed their law codes.
Legal protection and "cooperation" with the prosecution are needed for crime victims, witnesses, and criminal accomplices who have pled guilty and are working with investigators. At the previously mentioned "roundtable" discussion, a Federation Council member and former investigator, who had, incidentally, participated in convicting Chikatilo, said that the procuracy had protected victims and witnesses in those days. All of them worked as a "team" in the conviction of criminals, including accomplices who had confessed. All of this teamwork ended when the reforms were instituted, however, and it is much more difficult to restore something after it has been destroyed.
Our parliament has been wrestling with a witness protection law for eight years now. It was first passed in 1994 by the State Duma, but the president sent it back for reconsideration. It was passed again in July 1995, but the Federation Council rejected it. The law was passed by both houses in 1997, but Yeltsin never did sign it. Legal experts have held countless conferences and written hundreds of articles to convince the legislators that this is jeopardizing the whole legal system--i.e., the state--and, of course, the population. There is something seriously wrong when 60 percent of the citizens who become the victims of crimes do not ask the state for protection: They either do not trust it, or they are afraid, because statistics also indicate that 150,000-300,000 are subjected to unlawful pressure by crime families.
Obviously, it is difficult to "balance the rights" of the defendant and the people on the other side of the courtroom. The frequent dismissal of cases due to insufficient evidence, particularly when witnesses refuse to testify against defendants, has persuaded many people that judicial reform is premature, but giving in to this argument would cause us to regress, moving us backward, to the past we have taken such pains to leave behind.