Protection of provocative protected witnesses! Non-infringement of the right to life

JUDGMENT

Α and Β v. Romania 02.06.2020 (no. 48442/16)

see here 

SUMMARY

The case concerned the applicants’ complaint about the protection provided for them as witnesses
in a corruption case.

The Court found in particular that the authorities had recognised that the applicants had faced a
threat to their lives. However, it had taken some time – a year and four months – to formally include
them in the witness protection programme. On the other hand, the police had provided protection
during that time.

The Court noted disputes between the applicants and the authorities over the protection they had
been offered, with the applicants in particular critical of what they saw as a lack of experience in
protection by the police officers and various alleged mistakes.

Nevertheless, such issues had not justified provocative behaviour by the applicants and a repeated
disregard by them of their own responsibilities towards their protection. The applicants had been
uncooperative and had very often exhibited inappropriate behaviour towards the police officers.
The Court, commending the authorities for their efforts to continue protecting the applicants
despite their lack of cooperation, concluded by finding that they had done all that could reasonably
have been expected of them in the circumstances to protect the applicants from threat.

PROVISION

Article 2

PRINCIPAL FACTS

The applicants, Ms A and Mr B, are Romanian nationals who were born in 1981 and 1978
respectively and live as a couple in R.

In August 2015 the anti-corruption prosecutor’s office attached to the High Court of Cassation and
Justice (“the HCCJ”) declared the applicants “threatened witnesses”: they had worked for C, who,
along with another senior official, D, was being investigated for alleged acts of corruption. The
applicants were believed to have witnessed suspect transactions between C and D.

Immediate protection was provided by the Directorate General of Police (“the DGP”) in B., via the
Special Actions Service and their local police station. The Special Actions Service team started
immediately and from February 2016 a second team was assigned to protect the applicants. The
National Office for Witness Protection (“the NOWP”) met the applicants and explained the
conditions and requirements of the programme, which they agreed in December 2015 to join.

They subsequently had discussions over the protection protocols to be used by the DGP, which
described the police officers’ duties and the applicants’ obligations, which the applicants refused to
sign. In June 2016 the prosecutor’s office asked the HCCJ to lift the protection measures and exclude
them from witness protection as they were no longer in any danger, but the HCCJ dismissed that
request in August 2016.

The applicants were ultimately formally included in the witness protection programme run by the
NOWP in January 2017, with protection provided by the police. They signed the protection protocols
the same month, in which they also asked the NOWP to change their identities, move them abroad
and to give them financial assistance. In March 2017 the HCCJ dismissed the applicants’ requests.
According to the applicants, the police measures for their protection were ineffective. For example,
the police officers admitted that they had not had any instructions for their mission, which they had
said was the first of its kind. B also had disputes with the police officers as he was not happy with the
way they organised the protection. He was fined several times over these disputes.

During the protection period the applicants also faced threats, for instance, two bullets were left on
their doorstep and their car tyres were slashed. The applicants lodged complaints about the
protection, which were mostly dismissed. The applicants left Romania in 2017.

THE DECISION OF THE COURT…

Article 2

The Court decided to deal with the applicants’ complaint under Article 2 (right to life) of the
Convention alone.

Reiterating its case-law, in particular Osman v. the United Kingdom and R.R. and Others v. Hungary,
the Court noted that Article 2 of the Convention could come into play even though a person whose
right to life was allegedly breached had not died.

The applicants had been classified as “threatened witnesses” and the prosecutor’s office had
considered that they were in danger. In applying the rules of witness protection, the authorities had
accepted that there was a risk to the applicants within the meaning of the law.
The authorities had therefore known or ought to have known that there was a real and immediate
risk to the applicants’ life. The question was whether the authorities had done all that could
reasonably have been expected of them to avoid it.

The Court noted that the authorities had placed the applicants under protection as soon as a risk
had been identified, however, there had been various delays in the subsequent process: the
authorities had taken six months to draft protection protocols and present them to the applicants;
more than three months to secure the applicants’ agreement to take part in the witness protection
programme; and two moths for the prosecutor to start the proper procedure for including the
applicants in the witness protection programme under the relevant law.

The Court expressed concern that it had thus taken more than one year and four months, from
August 2015, when the risk had first been identified, to January 2017, when the applicants had
formally been included in the witness protection programme.

Nevertheless, they had not been left without protection during that time, even if, at least at the
beginning, it had been mostly improvised, given a lack of regulations, which had only become
applicable in July 2016. The resulting deficiencies had been corrected by the authorities and no
direct attack on the applicants had taken place.

The applicants had commented on the police officers’ lack of experience, but the Court did not
agree, noting, for instance, that they had received similar high-risk assignments in the past.
However, such experience had not been able to make up for an absence of clear instructions and a
lack of adequate preparation. The police officers had sometimes been found to be unarmed or
without uniforms, or had left their post before the next team had arrived.

Such omissions had risked compromising the applicants’ protection, although they had been taken
seriously by the authorities, which had investigated and when necessary issued reprimands.
While the Court accepted that such a situation had contributed to the escalation of the conflicts and
mistrust between the applicants and the police, they did not, however, justify the applicants’
provocative behaviour and disregard of their own responsibilities towards their protection.

The applicants had been fully aware of their duty to cooperate with the authorities, which had been
set out by law and included in the protection protocols, which they had eventually signed. In
practice, they had repeatedly failed to comply with their obligations and breached the protocols.
Among other things, they had been uncooperative and behaved inappropriately to the police
officers. They had tried to elude the protection measures and obstruct the work of the officers and
had allegedly made unattainable demands to the authorities concerning the obligation to find them
new jobs and had refused to compromise.

Moreover, the applicants had had a presence on social media and television, which had risked
compromising their protected witness status. The applicants had also refused an offer of relocation
within Romania, while the HCCJ had dismissed their request to have their identities changed and be
relocated abroad after careful examination and providing reasons.

Disregarding the HCCJ’s decision and their obligation to comply with the protection protocols, the
applicants had decided to move abroad, which had in practice ended their protection and potentially
exposed them to serious risk. Even in that situation, the authorities had not withdrawn their
protection but had maintained contact and had continued to offer them financial support.
The Court commended the authorities for their efforts to continue the protection despite the
applicants’ lack of cooperation, instead of withdrawing them from the witness protection
programme, an option provided for by law.

The Court considered that the authorities had done what could reasonably have been expected of
them to protect the applicants from the alleged risk to their lives. They had thus complied with the
requirements of Article 2 of the Convention and there had been no violation of that provision.


ECHRCaseLaw

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