VICTIMS & WITNESSES ASSISTANCE & PROTECTION
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Background
There is no scheme recognized by law or the state for Victim and Witness Assistance and Protection , at present.
The first steps in this direction were taken on the initiative of His Lordship, the Chief Justice in 2002 and a draft law was prepared and approved by the then Law Commission of Sri Lanka. It was not followed up due to lack of resources to support the legislation.
The matter was revived in the year 2005 and a more comprehensive law drafted and a booklet titled VICTIMS OF CRIME was prepared by the National Centre for Victims of Crime (NCVC). A draft law is now ready and is to be presented in the form of a Bill to Parliament for approval.
International Practice
Many countries have their own legislation to support Victim and Witness Protection and Assistance and in this regard the guidelines issued by the US Attorney General in 2006 takes pride of place.
It is now recognized that a scheme of Victim and Witness Protection and Assistance is a pre-requisite for the conduct of proper investigations into crime in general, and human rights violations, in particular.
Action by the commission
- Formulation of a National Policy on Victim and Witness Assistance & Protection for approval of the Cabinet of Ministers, pending the passage of the draft law in Parliament.
- Establishment of a Trust Fund with flexibility to disburse funds and receive international donations, subject to necessary safeguards and controls. It is envisaged that this Fund will be come a National Fund once the work of the CoI is over.
- Establishment of a multi-disciplinary unit consisting of specially selected police officers, a panel of experts consisting of forensic and medical doctors, psychologists and psychiatrists, counselors and lawyers to assist the Commission.
- Training of Staff
Specialized training to members of the staff deployed to work in the unit.
- Provision of assistance and facilities to victims and witnesses in accordance with a scheme drawn up by the Commission.
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Mandate , Structure & Rules of Procedure |
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(Adopted on 27 February 2007)
Whereas, the Commission of Inquiry has identified, taken cognizance of and appreciated the need and the necessity to provide assistance and protection to witnesses of incidents falling within the investigational and inquisitorial mandate of the Commission of Inquiry,
And Whereas, the Commission of Inquiry is mindful that in Sri Lanka there does not exist a special legislative framework for the providing of assistance and protection to victims and witnesses,
And Whereas, Rule 1.6 of the Organizational Structure and Rules of Procedure of the Commission of Inquiry provides as follows:
On the direction of the Commission , the Victim and Witness Protection Unit will provide necessary protection and assistance to victims and witnesses. On the directions of the Commission , the Unit shall be responsible for protecting victims and witnesses from possible intimidation, harassment and retaliation. The Unit shall provide necessary protection and other assistance to victims and witnesses, with the view to ensuring that such victims and witnesses have a conducive environment in which they could appear before the Commission and provide testimony to the Commission without fear of possible intimidation, harassment or retaliation.
Whereas, on the 19th day of January 2007, the Commission of Inquiry appointed a Sub – Committee of the Commission to consider and develop the mandate, organizational structure and the rules of procedure of the Victim and Witness Protection Unit of the Commission of Inquiry,
And Whereas the said Sub - Committee met on several occasions and considered matters relevant to the establishment of the said Unit, and in that regard considered international norms and standards pertaining to the providing of assistance and protection to victims and witnesses.
And Whereas the said Sub-Committee also considered the provisions of Sri Lanka’s draft Bill on Victim and Witness Protection,
And Whereas the nature of the assistance and protection that may have to be provided to victims and witnesses of incidents falling within the investigational and inquisitorial mandate of the Commission of Inquiry were also considered by the aforesaid Sub-Committee,
And Whereas the manner in which such assistance and protection could be afforded to victims and witnesses was also considered by the said Sub-Committee,
And Whereas, the said Sub-Committee took into consideration the nature and the magnitude of the human and material resources that would be necessary for the proper functioning of the victim and witness assistance and protection scheme of the Commission of Inquiry,
And Whereas, on the 21st day of February, 2007 the afore-stated Sub-Committee presented its proposals to the Commission of Inquiry pertaining to the Mandate, Organizational Structure and the Rules of Procedure of the Victim and Witness Assistance and Protection Unit of the Commission of Inquiry,
And on the 27th day of February, 2007, the Commission of Inquiry having considered the proposals of the afore-stated Sub-Committee , adopted this document as being the Mandate, Organizational Structure and the Rules of Procedure of the Victim and Witness Assistance and Protection Unit.
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1 |
Scope of the Victim and Witness Protection Unit
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1.1 |
Victim: For the purpose of this Unit, a Victim shall mean a person who has suffered harm (including physical or mental injury, emotional suffering, economic loss or an infringement of a Human Right) as a result of an act or omission which constitutes an alleged violation of a Human Right mandated to be investigated and inquired into by the Commission, and includes a person who has suffered harm by intervening to assist such a person or to prevent the violation of such a Human Right, and shall further include members of the family, the next of kin, dependent persons and significant others of such a person.
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1.2 |
Witness: For the purpose of this Unit, a Witness shall mean any person, or a group of persons or a member of the family , next of kin, dependent , significant others of such person who -
(a) has provided , is required to provide, wishes to provide, or is intending to provide information to the Commission and based upon whose information an investigation may commence, is scheduled to commence, or has commenced in connection with an alleged violation of a Human Right mandated to be investigated and inquired into by the Commission.
(b) has provided, is required to provide, or is intending to provide information, a statement or evidence before the Commission pertaining to an alleged violation of a Human Right mandated to be investigated and inquired into by the Commission.
(c) has in the course of an investigation or inquiry conducted by the Commission provided information or made a statement or given evidence containing an account of matters in respect to which such persons had been questioned or examined, or
(d) has reasonable grounds to believe that he shall be summoned by the Commission to make a statement and/or testify in any inquiry conducted by the Commission and shall include a victim.
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1.3 |
Purpose of providing Assistance
The primary purpose of providing assistance to victims and witnesses shall be to create a conducive environment in which victims and witnesses could make statements and / or give evidence before the Commission without any fear, obstruction, undue hardship or hindrance.
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1.4 |
Purpose of providing Protection
The primary purpose of providing protection to victims and witnesses shall be to protect victims and witnesses from possible intimidation, harassment, and retaliation with regard to, in the context of , as a result of, or in consequence of providing information, making a statement or giving evidence to the Commission.
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2 |
Measures of Assistance and Protection to Victims and Witnesses
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2.1 |
General Measures of Assistance and Protection
The Unit shall develop and implement a set of general assistance and protection measures to all victims and witnesses.
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2.2 |
Special Measures of Assistance and Protection
In addition to general measures of assistance and protection that would be provided to all victims and witnesses, the Unit shall develop and implement a set of special measures of assistance and protection to victims and witnesses, who shall require such special assistance and protection.
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2.3 |
Scheme for providing of Assistance and Protection to Victims and Witnesses
As soon as possible following the establishment of the Unit, it shall develop a scheme for providing of general and special assistance and protection to victims and witnesses. Following the development of the scheme, the Unit shall submit the said scheme to the Commission , for its consideration and approval. The approved scheme shall be referred to as the "Scheme for providing of Assistance and Protection to Victims and Witnesses."
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2.4 |
Determination of whether Assistance and Protection is to be provided
The Unit shall develop and apply a set of objective criteria for the evaluation, assessment and determination of whether any form of special assistance or protection is required for any victim or witness who is scheduled to, has made or given a statement or testimony to the Commission. As soon as possible following the establishment of the Unit, it shall develop the aforesaid objective criteria , and submit them to the Commission for its consideration and approval.
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2.5 |
The provision of general or special assistance and protection measures need not necessarily be based on a specific request by a victim or witness.
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2.6 |
Nature of General Measures of Assistance
General measures of assistance to be provided to victims and witnesses may include the following:
- Transport facilities to attend interview and inquiry sessions of the Commission
- Residential facilities whilst being interviewed by the Commission and testimony being recorded.
- Subsistence for attending interview and inquiry sessions of the Commission
- Counselling
- Medical treatment
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2.7 |
Special Measures of Assistance
Upon a consideration of facts and circumstances peculiar to a particular victim or witness, the Unit shall provide special measures of assistance not specifically mentioned in paragraph 2.6 above , to such victim or witness.
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2.8 |
Nature of General Measures of Protection
General protection measures to be provided to victims and witnesses may include the following:
- Direct personal protection to the relevant individual
- Protection to personal property of the victim or witness
- Protection from disclosure of the identity.
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2.9 |
Special Measures of Protection
Upon a consideration of facts and circumstances peculiar to a particular victim or witness, the Unit shall provide special measures of protection not specifically mentioned in paragraph 2.8 above , to such victim or witness.
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2.10 |
Upon the application of predetermined criteria, the Unit shall determine the nature of general and/or special measures of assistance and /or protection to be provided to victims and witnesses.
The Unit shall also determine the manner in which such measures of assistance and protection are to be provided.
The Unit shall identify and secure the required human and material resources required to implement such identified measures of assistance and protection.
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2.11 |
General and special measures of assistance and protection may be provided to a victim or witness before, during and/or after such victim or witness makes a statement or gives evidence to the Commission.
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2.12 |
Consent and Agreement to receive Assistance and Protection
The Unit shall provide general and special measures of assistance or protection to victims or witnesses, only after obtaining their consent and agreement to the receipt of such assistance and protection.
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2.13 |
Discontinuance of Assistance and Protection
In the event of any victim or witness abusing or misusing any assistance or protection being provided by the Unit to such victim or witness, the Unit shall upon reporting such matter to the Commission and after obtaining its approval, forthwith discontinue providing either the entirety or any part of assistance or protection to such victim or witness.
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2.14 |
External Resources
In the event of the Unit requiring resources not available with the Unit for the purpose of implementing an identified measure of general or special assistance or protection, the Unit shall through the Commission obtain such resources from the Government of Sri Lanka or any of its agencies.
After making necessary inquiries from the Government, in the event of it transpiring that the required resources are not available with either the Government of Sri Lanka or its agencies, the Commission shall forward such request to the Government enabling the Government to forward such request to an appropriate foreign government, or an international or regional government or non governmental organization.
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2.15 |
Creating Public Awareness
The Unit shall take appropriate measures to create public awareness of the functions of the Unit and the nature of assistance and protection that would be provided to victims and witnesses.
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2.16 |
Creating Awareness of Public Officials
The Unit shall take appropriate measures to create awareness amongst public officials regarding the need to:
- provide protection to victims and witnesses
- cooperate with the Unit
- provide assistance to the Unit in the discharge of its duties.
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3 |
Personnel of the Unit
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3.1 |
Head of the Unit
The Chief Executive Officer of the Unit shall be designated as the Head of Unit., whose responsibility shall be to mange all functions of the Unit and its personnel.
The Head and Deputy Head of the Unit shall be appointed by the Commission and shall report to the Commission.
The Head of Unit shall consult the Advisor of the Unit in the discharge of the functions of the Unit.
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3.2 |
Advisor of the Unit
The Unit shall have an Advisor , whose responsibility shall be to advise the Unit in the conduct of its functions in accordance with these rules.
The Advisor of the Unit shall take necessary steps to train the personnel of the Unit in providing assistance and protection.
The Advisor shall be appointed by the Commission and shall report to the Commission.
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3.3 |
Protection Officers
The Unit shall have a suitable number of officials who shall under the direction of the Head of the Unit, implement decisions to provide assistance and protection to victims and witnesses. Such Protection Officers shall be appointed by the Commission.
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3.4 |
Assistants
The Unit may have a suitable number of Assistants working both full and part-time, located both within the Unit and in the filed, to provide necessary assistance to the Unit. Such Assistants shall be appointed by the Commission.
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4 |
Organizational and Procedures
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4.1 |
The Unit shall at all times function on the directions and guidance of the Commission.
The Commission may delegate certain matters to be directly attended to by the Unit followed by obtaining the ratification of the Commission.
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4.2 |
Unless specifically authorized by the Commission, all external communication of the Unit shall be through the Secretary of the Commission.
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4.3 |
Where necessary, the Unit shall through the Commission seek and obtain the legal advice of the Panel of Counsel.
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4.4 |
Unless specifically directed to by the Commission, the Unit shall function independently of the Investigation Unit of the Commission.
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4.5 |
Prior to the implementation of a special measure of assistance or protection, the Unit shall obtain the specific approval of the Commission.
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4.6 |
The Unit shall be located , attached to the office complex of the Commission.
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Scheme of Assistance & Protection to Victims and Witnesses
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(Adopted on 08/05/2007)
Preamble.
It has become very essential to prepare a scheme for providing assistance and protection to victims who would be required by the Commission to assist in achieving objectives set out in the mandate. Such a scheme has never existed in the criminal justice system in Sri Lanka. The Commission is mindful of the mandate it has obtained from the President and the great necessity of taking steps towards satisfying the need of victims and witnesses.
The desire to implement victim friendly procedure is strengthened by the fact that the draft bill recognizing rights of victims and witnesses is under consideration by the government of Sri Lanka, though at present there exists no effective legislation or legal provisions for the realization of the rights of the victims and witnesses.
The Commission is also aware that the victims and witnesses, who provide evidence and material to the Commission, are likely to be called as witnesses in potential judicial proceedings in courts of law. Therefore the Commission is also very concerned not to take any measures that would impinge upon principles concerning fair trial.
In drawing up the scheme, therefore the Commission has to make a delicate balance between the rights of victims, rights of suspects, fair trial concept and the availability of resources. Procedure and Guidelines
Method and Contents of Communication |
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It shall be necessary for the Commissioners to make a decision about the
commencement of an investigation.
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The decision must be communicated to the Investigation Unit in writing.
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3. |
The Commissioners either directly or through Chief Investigator shall communicate in writing to the Head of the Victim and Witness Assistance Unit (VWAPU) about their decision and list of victims and witnesses on whom the Commission, the investigators or any other officer in the Commission wish to have access.
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4. |
The initial communication or the subsequent communication prepared by the Chief investigator should furnish following particulars enabling officers in the VWAPU to facilitate the functions of the Commission and the Investigation Unit by providing assistance and protection to victims and witnesses as these particulars would be essential in assessing the level of risk and the necessity of the protection and the assistance. A necessary form is prepared for this purpose.
Name of the victim/Witness |
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Address |
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Relevant Police division |
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Relevant Gramasevaka /AGA division |
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Other contact details: |
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a. Telephone No: |
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b. Fax No : |
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c. E mail address: |
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d. Any other source:
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Brief account of the potential evidence or information that the Victim or the witness might provide |
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Reason for the necessity of interviewing the victim or the Witness |
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The nature of the access the Investigators would wish to have with the Victim or the Witness |
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In the opinion of the investigator the sources from which the intimidation, harassment and retaliation could emanate |
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i. |
The possible nature of intimidation, harassment and retaliation |
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The possible nature of fear, obstruction, undue hardship or hindrance |
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The background and the identity of the alleged perpetrators of the serious violation of the human rights |
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l. |
Whether the alleged perpetrators have direct or indirect links with the members of the armed forces, police, any other person in authority or non state actors, organizations or groups? if so their identity |
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m. |
Whether the victims or witness have communicated to any authority about any fear or intimidation and the need for the protection and the assistance. |
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Suggestions and views of the investigators regarding the level of protection and the assistance that should be provided.
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5. |
The Commission shall provide all or part of the dossier of investigation or other material to the Head of the VWAPU, if the Commissioners deem it appropriate to do so.
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6. |
Assessment of Risk
Upon the receipt of the said material the Head of the VWAPU shall take following steps:
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6.1 |
Make a provisional determination in writing as to the level of risk after applying objective criteria. Similarly, the Head shall decide about the best method of approaching the victims and witnesses having regard to the
security and the protection of the victims or the witnesses. Accordingly, the Head of the VWAPU makes a decision as to whether general measure of protection is sufficient or any special measure of protection should be afforded.
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6.2 |
Obtain consent of the victims and the witnesses before making any measure of special or general of security. The victims and witnesses should be made aware of the nature of the security measures in place as far as possible without prejudice to the security of others including the security of personnel providing the security. However, in appropriate instances after consulting the Commission the Head of the Unit may withhold from the victims and witnesses about the nature of the security measures in place.
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7. |
Assessment of Level of Assistance |
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The Head of the VWAPU may also make provisional assessment about the nature of general and special measure of assistance that should be made available to the victim and the witnesses.
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8. |
General Measure of Protection and Assistance |
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The Commission shall make every endeavour to provide following general measure protection to victims and witnesses. In providing the protection, the Commission may take into account the views and observations of the victims and witnesses.
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8.1 |
Physical and Mental protection
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8.11 |
The Commission through the VWAPU shall take all necessary and meaningful steps to prevent any physical, psychological and mental harm, interference or intimidation being done to the victims and witnesses.
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8.12 |
It may be essential not to divulge the name and the identity of the victims or witnesses with a view to protect them from any harm, interference and intimidation. The Commission may decide the nature of the measure having regard to the level of risk. In appropriate instances the identity may be with held from potential suspects and their counsel, media and general public.
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8.13 |
The officers of the Commission who come into contact with the victims and witnesses are duty bound not to divulge the identity of the victims and witnesses to outsiders unless the Commission may deem fit in appropriate cases.
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8.14 |
The commission may also decide whether the full or part of the inquiry proceedings should be held in camera or not. Also, the Commission may determine whether the victims and witnesses should give evidence in the inquiry proceedings in a hidden position or take steps to hide the identity. The Commission may also recourse to technology including video recording in this regard. The nature of this measure may be decided by the commission.
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8.15 |
The Commission and its officers must take special care and attention as regards to the protection of children, women, and disabled and all vulnerable victims and witnesses.
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8.2 |
Property protection
The Commission shall take all steps as practicable as possible to protect the movable and immovable property of victims and witnesses if the Commission forms the opinion that such property is likely to be damaged or destroyed on account of the assistance provided by the victims and witnesses to the Commission.
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8.3. |
Respect to dignity and privacy
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8.3.1 |
The Commission and its officers shall respect to the dignity, privacy of the victims and witnesses. Measures should be taken to eliminate secondary victimization when victims and witness come into contact with the officers of the commission.
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8.3.2 |
In particular when questioning the victims and witnesses during the investigation or inquiry proceedings due respect should be given to dignity and privacy.
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8.3.3 |
The Commission may also determine as regards the restrictions that should be imposed during the cross examination of the victims and witnesses, on counsel for the potential suspects, in the event the commission allowing such counsel to participate in the proceedings
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8.3.4 |
The Commission may forbid any question which it regards as indecent or scandalous or intended to insult or annoy. The commission shall monitor that the examination of victims and witnesses should not be needlessly offensive.
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8.3.5 |
The Commission and its officers must take special care and attention as regards to children, women, and disabled and all vulnerable victims and witnesses when they are being questioned and interrogated.
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9. |
The Commission shall provide following measures of General Assistance to Victims and Witnesses. In providing the assistance the Commission may take into account as practicable as possible the views and observation of the victims and witnesses.
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9.1 |
Transport
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9.1.1 |
The Head of the Unit may determine the nature and mode of the transportation that should be given to the victims and witness depending on the necessity and availability of resources.
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9.1.2 |
Effort should be made as far as practicable to provide transport facilities to all victims and witnesses who have genuine security concerns.
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9.1.3 |
For other witness, the commission may determine in providing an allowance for transportation.
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9.1.4 |
The Head of the VWAPU with the concurrence of the Commissioners shall prepare a scheme of allowance for transportation.
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9.2 |
Accommodation
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9.2.1 |
The Head of the VWAPU in consultation with the Commissioners, relevant agencies and institutions must make available necessary accommodation in secure places to victims and witnesses if they wish to have such facility. The Head of the VWAPU in consultation with the Commission may decide the nature and duration of the accommodation that would be best suited to particular victim and witness.
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9.2.2 |
If the event victims and witnesses wish to stay in an accommodation selected by them, the Commission shall reimburse the expenses for such accommodation on scheduled scheme of payment.
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9.2.3 |
The Head of the VWAPU with the concurrence of the Commissioners shall prepare such scheme of payment for accommodation.
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9.3 |
Compensation for loss of income
Victims and witnesses are entitled to claim compensation for the loss of income incurred on account of providing assistance to the Commission.
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9.4 |
Legal assistance
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9.4.1 |
The victims and witnesses must have a right to be represented by an Attorney at law during the course of the inquiry and the investigations.
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9.4.2 |
In the event victims and witnesses require legal assistance, the Commission shall provide them the opportunity to have access to an Attorney at Law from a panel of Attorney’s at law.
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9.4.3 |
The Commission shall establish such panel of Attorney’s at law and it can be revised from time to time.
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9.5 |
Counseling
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9.5.1 |
The Commission considers that it is very important to provide the services of counselors to victims and witnesses. The Commission has decided to provide counseling services and shall establish panel of professional counselors for that purpose.
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9.5.2 |
The VWAPU in consultation with the Commission shall facilitate the access to counselors to the relevant victims and witnesses.
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9.6 |
Medical Treatment
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9.6.1 |
The Commission considers that it is very important to provide the services of professional medical staff and other relevant experts to victims and witnesses.
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9.6.2 |
The Commission has decided to provide medical service and shall establish a panel of professional medical staff and other relevant experts for that purpose.
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9.6.3 |
The VWAPU in consultation with the Commission shall facilitate the access to medical staff and other experts to the relevant victims and witnesses.
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9.7 |
Information Services
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9.7.1 |
Victims and witness should be given an orientation about the investigation, inquiry, panel of Attorney’s at law, various units, Commission and the legal frame work upon which the Commission is functioning.
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9.7.2 |
Victims and witnesses are entitled to have information regarding the general measure of protection and assistance available to them.
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9.7.3 |
Victim and witness should be provided with necessary information with regard to all the important decisions, steps and progress of the investigation and inquiry in respect of which he or she is victim or witness without prejudice to the ongoing investigations, inquiry, and potential trial in a court of law.
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9.8 |
Facilities.
The victims and witnesses shall be provided with necessary facilities including waiting rooms and refreshments when assisting Commission in an investigation or inquiry.
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10. |
The Head of the VWAPU in consultation with the Commission shall identify and make use of agencies, persons, organizations and institutions that would be useful in providing the general measure of protection and assistance. The Head of the VWAPU as directed by the Commission shall take appropriate measures to make available the assistance of such agencies, persons, organizations and institutions without compromising the integrity and independence of the Commission.
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11. |
Special measure of Protection and Assistance
The Commission shall provide special measure of Protection in instances where general measure of protection is not sufficient, having regard to the special needs and requirements of the particular victim or witness.
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12. |
The Commission shall provide special measure of assistance in instances where general measure of assistance is not sufficient, having regard to the special needs and requirements of the particular victim or witness.
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13. |
The Head of the VWAPU shall decide in consultation with the Commission as regards the mode of providing special measure of protection and assistance.
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14. |
The Head of VWAPU in consultation with the Commission may identify and make use of the agencies, persons, organizations and institutions that would be useful in providing the special measure of protection and assistance.. The Head of the VWAPU as directed by the Commission shall take appropriate measures to make available the assistance of such agencies, persons, organizations and institutions without compromising the integrity and independence of the Commission.
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15 |
The procedure laid down in the ‘Mandate, Organizational Structure and Rules of Procedure of the Victim and Witness Assistance and Protection Unit’ shall apply as regards the channeling of external resources.
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16. |
In the event any officer of the VWIPU comes to know of the existence of any fresh witness, victim or material it shall be the duty of the Head of the VWIPU to communicate such information to the Commissioners.
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17. |
The Head of the VWAPU with the concurrence of the Commission shall decide about the duration for which these measures would be operative. The duration can be changed after reviewing the development and circumstances of each investigation and inquiry. There will be periodical review of the level of protection and the assistance the victims and witnesses require.
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18. |
The Commission may delegate powers and responsibilities under the scheme to one or more of the Commissioners.
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19. |
The scheme can be amended by the Commission as and when it is required.
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Senior Assistance & Protection Officers
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Advisors
Mr. Sarath Jayamanne , Deputy Solicitor General
Ms. R. Thotagamuwa, Attorney at Law, Director, National Centre for Victims of Crime
Ms. Shirani Goonetilleke, Director-Legal, Secretariat for Coordinating the Peace Process
Head of Unit
Mr. J. Thangavelu, Deputy Inspector General of Police, Attorney at Law
Deputy Head
Mr. S. Suntharalingam, Attorney at Law
Director
Mr. Clement de Silva, SSP
Officer in charge
Mr. T. S. P. Warnasuriya, CI
Asst. OIC
Mr. T. M. B. Hamid. Retired IP
Attorneys at law
Mr. Leon Fernando
Mr. M. Nawaz |
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