A victim is someone who suffers direct or threatened physical, emotional or financial harm as a result of commission of a crime. A witness is someone who has information or evidence concerning a crime and provides information regarding this knowledge to the law-enforcing agency.
It is a fact that witnesses play a crucial role in determining an offender's guilt. A study shows that every year thousands of cases are lost on their merits because they lack a witness. There have been instances wherein family members, lawyers and victims have been threatened and compelled to become hostile. The prosecution in such cases receives continuous threats from the accused, and as a result, witnesses decline to appear before the Court. In most cases victims become stigmatized and do not dare file complaints, fearing insecurity and difficulties at the police stations, in the courts and in society. Along with this, there is a rising trend in organized crime, human trafficking and drug trafficking which worsen the situation. In this context, victim-witness should have the right to be protected from intimidation and harm. In addition, they should have the right to reparations, the right to be treated with dignity and compassion, the right to counsel, the right to be informed concerning the criminal justice process and the right to privacy.
Different countries of the world have designed their own victim and witness protection program. These programs provide services to the victim-witness and ensure that the voices and needs of crime victimsremain uppermost throughout the judicial process. These programs give information on how to get help after victimization. In spite of the increasing crime rate in the country, the legislator has not adopted measures to protect victim-witness, and there is no comprehensive law on victim-witness protection in Nepal. However, there are few provisions regarding witness protection under States Cases Act, 2049, and in the State Cases Regulation 2055. These laws provide for the traveling allowance to the victim-witness. However, much more needs to be done. Besides these provisions, the Human Trafficking and Transportation (Control) Act, 2064 and its regulation, provide security to witnesses while traveling and in the course of attending the case’s proceedings in the court. These regulations also keep the witness under police protection for a period of time and provides for rehabilitation at a rehabilitation center.
Realizing the need of victim-witness protection laws in the country,the Forum for Women, Law and Development (FWLD) has filed a writ petition before the Supreme Court of Nepal. In response, the Supreme Court issued a directive order to the government to take necessary steps to prepare a separate law in order to create a victim-witness protection and assistance program. Further the court issued a writ of mandamus to the Ministry of Finance and Police Headquarter to provide a travel allowance to government witnesses according to the existing laws. The court also issued a directive order to the Ministry of Home Affairs and Police Headquarter to establish a taskforce to prepare an interim work plan on victim-witness protection and to execute it. The Court also ordered a Witness Protection Officer appointed, that a witness protection and assistance section at police headquarter be established, and that a witness protection and assistance committee in every district be established under the convener of Head of District Police Office.
If we look at international efforts on victim-witness protection, we find that the United Nations Convention against Transnational Organized Crime calls upon state parties to take appropriate measures to protect witnesses in criminal proceedings from threats, intimidation, corruption or bodily injury, and to strengthen international cooperation in this regard.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by General Assembly Resolution 40/34 of 29 November 1985 discusses access to justice and the fair treatment of victims. Victims should be treated with compassion and their dignity respected. They are entitled to access the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
In 2007, the U.N. Committee against Torture (CAT) expressed its concerns regarding the lack of witness protection and recommended adopting appropriate legislative and administrative measures to ensure that all persons who report acts of torture or ill-treatment are adequately protected.
So we see that the Court has issued a remarkable decision in favor of protecting victims-witnesses, and now the question is how to implement this court decision and create these programs and laws. This is all dependent on the willingness of the state machinery. State should enact the law for the protection of victim-witnesses. State should educate victims and witnesses about the criminal justice system, escorts victims and witnesses from the reception area to the courtroom, assists victims with the prompt return of personal property, arrange accommodation and transportation services, informs victims and witnesses of the availability of witness fees and reimbursement of expenses, provide counseling support and advocacy within the justice system, etc. For this, everyone should take the necessary steps from their respective places to create the consolidated law.
In sum, the protection of victims and witnesses must be given top priority in our Legislative enactment and administrative policies. The State should develop a protection program that provides information and support to victims and witnesses. Presently, there is fear and impunity and a comprehensive witness protection is the need of the hour.
Reena is an advocate