Protected witness: The need for contradiction

He won, as a result the trial related to the so-called the case of New Business, the importance and a lot of gossip in the media and social networks, the figure of the “Protected Witness”. Who is a protected witness”? Well, as the name suggests, it is a “witness” who is “protected”. Witness what and protected from what or why?

We explain. In accordance with what is prescribed in Articles 331 and 332 Law on Criminal Procedure, Our system of criminal prosecution foresees that at the level of investigation and trial protection measures are adopted for victims, witnesses, experts and collaborators. In the specific case of witnesses, the article that adequately prescribes the character or condition of a protected witness is 332, as in its numbers 12, 3,456, 8 and 10, in accordance with Article 336 of the same law, regulate issues concerning this class or classification of witnesses .

These numbers, those from Article 332, refer to certain connotations for some witnesses, which can be: 1. A protected witness, as such; 2. Anonymous witness; 3. Hidden witness and 4. Anonymous and hidden protected witness. Therefore, in the case of a protected witness, as such, efforts are made to preserve the safety of witnesses in order to preserve their physical and psychological integrity. In the case of an anonymous witness, the data of the general provisions of the Act are stored or maintained, in the degree of reserve or secrecy, hence the qualification “anonymous”. The hidden witness is the one from whom everything comes physical identity, primarilyface, skin color, etc., of the witness, but his general provisions of the Law are known about him. And, for the last case, the witness can be, at the same time time, protected, anonymous and hidden.

Just in case anonymous witnesses, number 1 of Article 332 of the Criminal Procedure Act; for the hidden witness, numbers 3 and 8 of the same legal statement; and for a protected witness, as such, number 4 of Article 332 and Article 336 of the ZPP regulate, in the part that refers to regulations intended to preserve the physical and psychological integrity, personal safety, of the witness: Security reinforcement in homes, walls, doors, windows and so on; permanent official protection while the circumstances of danger last; relocation or change of residence; delivery of personal weapons, change of workplace or study center, etc.

In the historical course of our forms criminal trial proceduresthis figure is nothing new, since it is in the old one Inquisitive procedural system, under whose auspices the process developed New job, it was already consecrated. Thus, for example, Article 2121-A of Book III Judicial Code, introduced, in turn, by Article 6 of Law no. 48 of August 31, 2004, prescribed it with almost the same or similar text found in the above Article 332 of the Criminal Procedure Act, which contains an adversarial court system.

What, in my opinion, in relation to the doctrinal and legal settings and assumptions of the accusatory system, makes this figure irreparable and inappropriate, since its premises are arbitrary and closer to the inquisition system than to the essential principles of the adversarial procedure. System., which is based, basically, on the undeniable right to contradiction, equality of arms, Defense developed in a transparent and free manner, without obstacles; from The constitutional clause on the inviolability of the defense in a trial, legal procedure, etc

In short, a protected witness is a natural person, physically, but in a criminal investigation or ua the criminal process gives its essential testimony, relevant, to establish or prove facts that are considered or assumed to be a criminal offense without disclosing information about their identity or their image, although other legal protection measures can be contracted, as we have already seen in our legislation. This is a much-discussed witness in the field procedural lawespecially in an adversarial court system.

The defense has an absolute right, based on principle of equal parts, to use the equality of the parties, to know the identity of the witness, so that after his appearance, which is inalienable and non-deferrable, in the evidentiary process discussion he asks him any questions and cross-examination that are suitable, relevant and forthcoming. With good reason it has been argued that full identification of the witness is requiredessential, to know whether there is any enmity or enmity with the accused, or even any pathology which permits the questioning of him credibility, trustworthiness or impartiality.

It is also important for the defense to be able to examine and recognize, accredit, the witness status of the person who is testifying. If this does not happen after the process, in the so-called evidentiary relief, that is, in the practice or processing of the evidence, in the basis of the testimony, it is equal to omitting, ignoring, who the witness is and this leads to a serious and disturbing influence on the principle adversarial proceedings, with an aggravating circumstance that it is to the detriment or a clear and burdensome deterioration of the defense.

Consequently, it is necessary to harmonize the concept of a protected witness with the nature of criminal proceedings and the defendant’s right to defense.

At the level of comparative law jurisprudence, for example, Spain and the rest of Europe, the courts have followed the jurisprudence established by the European Court of Human Rights. Let’s see: 1. Sjudgment in the KOSTOVSKI CASE of November 20, 1989 and the WINDISCH CASEof September 27, 1990, in which the European Court stated that, although it is true that the personal legal rights of witnesses must be defended, this can never, ever be interpreted or assumed as a limitation of the defendant’s right to defense, since it would be contrary to requirements from Article 6 European Convention on Human Rights. In the judgments of TAAL C. ESTONIA, from November 22, 2005 or BIRUTIS C. LITHUANIA, On March 28, 2002, the court ruled that the testimony of anonymous witnesses can never serve as the sole evidence of the prosecution on the basis of which a conviction can be supported, nor as decisive incriminating evidence.

In the same sense and scope, Spanish Supreme Court (TSE) in SSTS sentences NOT. 455/2014 OF JUNE 10 AND NO. 200/2017 OF MARCH 27, when a witness testifies at a trial, and the defense cannot find out his true identity, the prosecution’s evidence will be extremely ineffective. This means that the testimony of a protected witness has only a substitute character, which means that it will be valid as evidence in criminal proceedings as long as it is supported by other means of evidence, in my opinion, of the same nature (testimony). , and this was confirmed in the criminal proceedings, appropriately, through contradictions, especially for the defense.

Although the status of a protected witness is recognized person during the investigation phase – New Business Case-for the purposes of the oral hearing, it can be your first and last name
discovered by whom serve as a judgeeither ex officio or at the reasoned request of any of the parties, at the time of the presentation of evidence, since it is undoubted that the judge must be a full, real guarantor of the principle of adversariality and the effective right to defense. .

There is agreement and consensus, in comparative jurisprudence and doctrine, that if the real identity of the protected witness is not revealed, his statement, related to the oral hearing or itself after
appearance, cannot serve as evidence of the accusation or as decisive incriminating evidence on the basis of which the defendant could be convicted.

Doing otherwise implies a flagrant violation of technical rules and other norms that constitute the guarantee of the principle of due process which the constitutional text of Art.
32 and Article 8 American Convention on Human Rights. This last norm stipulates: “Everyone has the right to be heard, with adequate guarantees and within a
reasonable, by a competent, independent and impartial judge or court, previously established by law, in substantiation of any criminal charge brought against him, or for
determination of their rights and obligations of a civil, labor, tax or any other nature.

2. Every person accused of a criminal offense has the right to be considered innocent until proven guilty by law. During the process, everyone has the right, in full equality, to the following minimum guarantees: a) The defendant’s right to free assistance by a translator or interpreter, if you do not understand or speak the language of the court or tribunal; b) prior and detailed communication to the defendant of the formulated accusation; c) giving the defendant adequate time and resources to prepare the defense; d) the defendant’s right to defend himself personally or to be assisted by a lawyer of his choice and to communicate freely and privately with his lawyer; e) the inalienable right to the assistance of a defense attorney provided by the state, paid or unpaid according to domestic legislation, if the accused does not defend himself or does not appoint a defense attorney within the period established by law; F) The right of the defense to question witnesses attend the court and obtain the appearance, as a witness or expert, of other persons who can shed light on the facts; Mr) The right not to be forced testify against himself or plead guilty” (italics added). God bless the country!