“By protecting witnesses, society protects its ability to dispense justice”

Softly spoken, and weighing his words carefully, Jari-Pekka Paajala, a former Finnish prosecutor with over 35 years professional experience is working with his colleagues at EUPOL COPPS to support the creation of a Palestinian witness protection system for corruption cases as well as whistleblowers and informants.  

Speaking over video link, he explains, “The process of investigating and prosecuting offenses, grave or not, depends largely on the information and testimony of witnesses. Witnesses are one of the cornerstones of successful national criminal justice systems”. Drawing on his own experience of investigating and prosecuting crimes, he adds, “Prosecutors depend upon witnesses who are reliable, whose testimony can be accepted as truthful, accurate and complete”.

Witness protection as practiced nowadays began in earnest in the United States in the 1970s as a tool in the fight against organised crime. It was realised that people who wished to testify against criminal gangs were particularly vulnerable and needed protection. European countries followed, and the Council of Europe published its recommendation concerning intimidation of witnesses and rights of defence in 1997.

Paajala is keen to stress that while protecting witnesses, a criminal justice system also needs to protect the right to a fair trial, which is a fundamental human right. “Quite commonly, witnesses are criminals themselves, who wish to testify against their former colleagues or bosses. A programme needs to be structured in such a way, so that the right to a fair trial is not compromised”.

He notes that in his native Finland for example, the police organisation responsible for implementing witness protection programme drafts an annual report, which is eventually sent to the Parliament. This report outlines the steps taken during the previous year, without releasing any confidential information that might threaten the safety of witnesses. So far, a balance between transparency, human rights and the safety of witnesses has been maintained in Finland and thankfully, no-one who has taken part in a witness protection programme has been killed while under the protection of the state.

The Finnish prosecution expert also underlines, “Those who are working in the system have to be properly vetted to make sure that they are capable of protecting information. Any database has to be very carefully built – witnesses have to be able to trust that their personal information will not leak. Witness protection requires the full confidence of the public, in particular, those want to provide evidence during a trial. Any failure to safeguard confidentiality will ruin the credibility of the programme. All the relevant information must be kept and classified as top secret.”.

To protect the system, those participating in a programme need to understand what they signing up for and those working for the programme need to be entirely trustworthy. “The assessment of candidates for protection has to be done very carefully,” says Paajala. “Both the witness protection programme and the person asking for protection have rights and responsibilities, and these have to be laid out very clearly in a legal document signed by both parties”.

A well-functioning witness protection programme also involves a careful consideration of the threats and risks to the programme as well as considerable coordination between different parts of the criminal-justice chain. Offering a practical example of the coordination that needs to take place, Paajala says, “Witnesses in a witness protection programme need to be escorted to the courthouse unless they give their testimony via remote connection. This is usually done by the police. They need to be trained in how to deal with these kinds of witnesses. Proactive cooperation with the courts and penitentiary services in ensuring the safety of witnesses is indispensable”.

Moreover, creating a trusted system requires significant human and financial resources. “What if the witness needs to quit their job to enter the programme?” he says as an example of the kinds of questions that arise. “Will the state be willing and able to support the witness financially?”

“It is worth bearing on mind that implementing a full-scale witness protection programme that involves relocating witnesses and changing their identity is always a last resort. Even small measures such as greater use of video testimonies in court or improving the psychological support and legal advice provided to witnesses would improve the situation considerably. In the West Bank, the focus is on providing job and legal protection for those who report on alleged acts of corruption”.

The Palestinian criminal justice system took a big step forward in November 2019 by passing a by-law allowing for the creation of a witness protection programme for anti-corruption. Currently, EUPOL COPPS advisers are having weekly teleconferences with the Palestinian Anti-Corruption Committee (PACC) as well other key stakeholders in the process such as the Palestinian Civil Police with an aim to drawing up Standard Operating Procedures for the programme.

“Once the procedures are in place, we will continue to provide support for PACC staff and other partners in the police, courts, court administration and penitentiary service to train them and ensure that the procedures are understood. There will be lots of questions that arise – for example, how do you protect prisoners who are also witnesses? Training and cooperation between agencies will be important,” says the Finnish prosecution expert.

If successful, the programme might be extended to other serious crimes. But the priority for the moment is to ensure that the system works for corruption cases. “Of course, we are willing to support our Palestinian counterparts in any way we can to make this a success,” concludes Paajala.