PROCLAMATION No. 699/2010. A PROCLAMATION TO PROVIDE FOR THE PROTECTION OF WITNESSES AND WHISTLEBLOWERS OF CRIMINAL OFFENCES


PROCLAMATION No. 699/2010.

A PROCLAMATION TO PROVIDE FOR THE PROTECTION OF WITNESSES AND WHISTLEBLOWERS OF CRIMINAL OFFENCES

WHEREAS, it is essential to create conducive situations in order to ensure the safety and security of the public by having criminal offenders brought to justice and sustain the right penalty;

WHEREAS, providing protection for witnesses and whistleblowers of criminal offences play a significant role for the prevention of crime by uncovering crimes that may cause serious threat to the public;

WHEREAS, it is found necessary to legislate the protection systems that need to be put in place in order to protect witnesses and whistleblowers of criminal offense from direct or indirect danger and attack they may face as a consequence thereof and thereby to ensure their safety;

NOW, THEREFORE, in accordance with Article 55

(1) of the Constitution of the Federal Democratic Republic of Ethiopia it is hereby proclaimed as follows:

PART ONE

GENERAL

1. Short Title

This Proclamation may be cited as the “Protection of Witnesses and Whistleblowers of Criminal Offences Proclamation No.699/2010.”

2. Definitions

In this Proclamation, unless the context otherwise requires:

1/ “whistleblower or witness” means a person who has given or agrees to give information or has acted or agrees to act as a witness in the investigation or trial of an offence;

2/ “protected person” means a witness, a whistleblower or a family member of a witness or a whistleblower who has entered into a protection agreement with the Ministry;

3/ “relocation” means a type of protection measure that involves temporary or permanent resettling of a protected person by the Ministry in a place, within the country or overseas, other than his place of residence or if the protected person is undergoing a penalty entailing loss of liberty, the transfer of him to another penitentiary;

4/ “change of identity” means a type of protection measure that involves modifying and adjusting parts or entire personal data of a protected person to a new situation and may include plastic surgery where necessary;

5/ “surveillance protection” means a type of protection measure that includes the conduct of covert protection of a protected person and surveillance and technical recording, by long-distance communication means, of the premises in which he resides;

6/ “concealing identity and property ownership” means a type of protection measure that involves temporary creation and use of documents relating to the identity and property of a protected person;

7/ “family” includes the spouse or cohabitant, the children, parents, siblings and the children of the spouse or cohabitant of a person;

8/ “Ministry” or “Minister” means the Ministry or Minister of Justice, respectively;

9/ “Commission” means the Federal Ethics and Anti-Corruption Commission;

10/ “person” means natural or legal person;

11/ any expression in the masculine gender includes the feminine.

3. Scope of Application

1/ The protection under this Proclamation shall be applicable with respect to testimony or information given or investigation under- taken on a suspect punishable with rigorous imprisonment for ten or more years or with death without having regard to the minimum period of rigorous imprisonment:

a)where the offence may not be revealed or established by another means otherwise than by the testimony of the witness or the information of the whistleblower ; and

b)where it is believed that a threat of serious danger exists to the life, physical security, freedom or property of the witness, the whistleblower or a family member of the witness or the whistleblower.

2/ Notwithstanding the provisions of sub-article (1) of this Article, the Ministry and the Commission may also extend the protections provided under sub-article (1),

(1), (m), (o), (p) and (t) of Article 4 of this Proclamation to witness and whistleblowers who renot protected persons.

PART TWO

PROTECTION MEASURES

4. Types of Protection Measures

1/ The following protection measures may be employed for a protected person separately or in combination, as the case may be:

a)physical protection of person and property;

b)providing a secure residence including relocation;

c)concealing identity and ownership;

d)change of identity;

e)provision of self-defense weapon;

f)immunity from prosecution for an offence for which he renders information;

g)prohibiting an accused person from reaching the protected person’s residence, work place or school before or after a final judgment is delivered on the crime for which information is given;

h)not to disclose the identity of a witness until the trial process begins and the witness testifies;

i)hearing testimony in camera;

j)hearing testimony behind screen or by disguising identity;

k)producing evidence by electronic devices or any other method;

l)unless it is deemed confidential, providing information regarding the progress of investigation on what has been whistle blown and advice to a w m)providing transport allowance and per diem to a witness summoned to testify;

n)covering relocation cost where the protection measure entails relocation

o)suspension or revocation of retaliatory administrative measures or taking any other compensatory measure;

p)provision of medical treatment free of charge at government hospitals in case of injury sustained as a result of retaliatory measure;

q)covering costs of basic needs in case of incapacity to work as a result of retaliatory measure;

r)in case of death as a result of retaliatory measure, covering funeral expenses and provision of pecuniary subsidy to family;

s)assisting the protected person to secure opportunity

t)providing or causing the provision of counseling service to the witness or whistleblower.

2/ Notwithstanding the provisions of sub-article (1) of this Article, a protected person may not be issued with professional certificate that he does not rightly possess for the sake of protection.

5. Determining Types of Protection Measures

The following shall be taken into account in determining the type of protection measure to be provided to a protected person:

1/ nature of the imminent danger to which the protected person is exposed;

2/ where the protected person has a criminal record, whether or not the intended protection measure entails a risk to the public;

3/ the damage that the intended protection measure may cause to the rights and lawful benefits of another person;

4/ the health and living conditions of the protected person;

5/ competence of the protected person to adapt himself with the intended protection measure;

6/ cost to be incurred for the protection;

7/ the relationship of the protected person with other protected persons;

8/ obligations and limitations imposed on the protected person according to law, if any;

9/ other similar appropriate considerations provided by the Ministry.

PART THREE

APPLICATION FOR PROTECTION AND PROTECTION AGREEMENT

6. Application for Protection

1/ An application for protection may be made:

a)by a person eligible for protection under Article 3 of this Proclamation; or

b)where the eligible person is unable to apply, by investigator, a public prosecutor or any interested person on behalf of such person.

2/ An application for protection to be submitted in accordance with sub-article (1) of this Article shall consist of:

a)information on the identity and address of the eligible person;

b)the offense related to the whistle blowing, testimony or investigation that constitute the ground for protection;

c) the danger that may likely sustain against the eligible person;

d)any criminal charge or civil case, debt or decision of court depriving rights, brought against him before his application for protection; and

e)any other appropriate information required by the Ministry.

7. Decision on Application for Protection

1/ Where an application for protection is submitted in accordance with Article 6 of this Proclamation by persons other than the investigator or public prosecutor, the Ministry, shall, solicit the opinion of investigator or public prosecutor before delivering decision.

2/ The Ministry shall, in accordance with the provisions of Article 3 of this Proclamation, decide on an application made for protection within 30 days from receipt of the application.

3/ The Ministry may take urgent protection measures where it believes that grave danger is likely to occur to the life, physical security or property of the applicant until decision is given on the application.

4/ Where the Ministry rejects the application for protection, it shall notify the applicant in writing by stating the reasons thereof.

8. Protection Agreement

1/ Where the Ministry decides to implement one or more of the protection measures specified under sub-article (1) from (a) to

(d) of Article 4 of this Proclamation, it shall enter into protection agreement with the protected person.

2/ Where the protected person is a minor or a judicially interdicted person, the protection agreement shall be concluded with his parent or guardian.

3/ Where a protection agreement entered into under sub-article (2) of this Article continues to operate after the cessation of the legal incapacity, the protected person shall conclude the agreement by himself.

9. Special Protection Agreement

1/ Notwithstanding sub-article (2) of Article 8 of this Proclamation, the Ministry may enter into a special protection agreement with a minor where:

a)the minor is giving information or testimony against his parent or guardian;

b) the minor has no parent or guardian;

c)his parent or guardian could not be found notwithstanding reasonable efforts to find them; or

d)his parent or guardian is unreasonably withholding his consent or unable to give his consent for any reason.

2/ A special protection agreement entered into with a minor shall be presented, for approval, to the Federal High Court within ten days from the date of signature.

3/ An application to be submitted to the Federal High Court under sub-article (2) of this Article shall contain:

a) the reasons justifying the protection;

and

b) the special protection agreement entered into with the minor.

4/ The court to which an application is submitted under sub-article (2) of this Article may set aside, approve or amend the special protection agreement by taking into account the realization of the best interest and security of the minor.

5/ If the special protection agreement is set aside in accordance with sub-article (4) of this Article, the Ministry shall discharge the minor from protection.

6/ A special agreement approved or amended in accordance with sub-article (4) of this Article shall constitute a binding agreement.

10. Entry into Force of Protection Agreement
A protection agreement shall come into force as of the date of signing between the protected person and the Ministry.

11. Obligations of Parties to the Protection Agreement

1/ A protected person shall have the obligation to:

a)provide true, clear and complete information or evidence or testimony for investigation or prosecution in relation to the case which is the subject matter of the protection agreement;

b)complete correctly the form prepared by the Ministry for the purpose of obtaining personal information;

c)refrain from activities that may obstruct the protection measure;

d)accept and implement orders and directives relating to the protection;

e)when requested by the Ministry, undergo medical examination and produce the result thereof;

f)when requested by the Ministry, receive counseling or undergo medical treatment in relation to narcotic drugs or alcohol addiction and produce the result thereof;

g)inform the Ministry any criminal charge brought against him or deprivation of rights while under protection, if any;

h)inform the Ministry immediately of a new occurrence that may affect the protection measure;

i)agree to be under surveillance protection;

j)strive to sustain himself economically; when the type of protection is provision of basic needs; and

k) carry out other obligations deemed necessary by the Ministry.

2/ The Ministry shall have the obligations to:

a)not to restrict the right and freedom of the protected person more than the extent deemed essential;

b)notify to the protected person in advance, to refrain from any activity that may obstruct the protection measure;

c)inform the amount of cost of basic needs to be provided to the protected person and its duration;

d)ensure that the protected person get the necessary counseling services while under protection; and

e)take all necessary measures to ensure the effectiveness of the protection measures under the protection agreement.

12. Termination of Protection Agreement

1/ A protection agreement shall be terminated:

a) upon the expiry of the validity period fixed in the agreement;

b) upon the death of the protected person;

c) where the protected person voluntarily renounce the agreement;

d)in the case of an agreement concluded under sub-article (2) of Article 8 of this Proclamation, where termination of the agreement is demanded, in writing, by the parent or guardian of the protected person;

e)where a minor or judicially interdicted person refuses, upon secession of his legal incapacity, to consent to the continuation of the agreement in accordance with sub-article (3) of Article 8 of this Proclamation;

f) where the circumstances that necessitated the protection ceases to exist prior to the expiry date of the agreement;

g)where the conduct of the protected person renders ineffective the protection measure of himself or the others; or

h)where the protected person violates his obligations under sub-article (1) of Article 11 of this Proclamation.

2/ The Ministry shall, before terminating a protection agreement in accordance with sub-article (1) (f), (g) or (h) of this Article, inform the protected person as to when and why the protection agreement is to terminate and give him the opportunity to present his opinion in writing.

3/ The Ministry shall decide the continuation of the protection agreement where it finds that the opinion given by the protected person is acceptable.

4/ The Ministry shall terminate the protection agreement where the protected person fails to respond within one month from receipt of notification under sub-article (2) of this Article or where the opinion he has submitted is not acceptable.

5/ Where protection agreement is terminated on the basis of this Article the Ministry shall notify same to the concerned organs.

13. Extension of Protection Agreement

1/ A protected person may apply to the Ministry for the extension of a protection agreement for additional period.

2/ The Ministry shall, where it is convinced that the threat which necessitated the protection still exists, extend the protection agreement for additional period.

3/ The Ministry, on its own motion, may decide to extend special protection agreement entered pursuant to Article 9 of this Proclamation, when necessary.

PART FOUR APPLICATION OF CONCEALING IDENTITY AND PROPERTY OWNERSHIP AND

CHANGE OF IDENTITY

14. Concealing Identity and Property Ownership

1/ A protected person, whose identity and property ownership has been concealed, may enter into a legal obligation that may have an impact on third parties by using the document issued to him upon obtaining the consent of the Ministry.

2/ Where the request submitted to the Ministry in accordance with sub-article (1) of this Article is not accepted, the protected person may, upon notifying the Ministry, appoint an agent to enter into a legal obligation in his real name.

15. Change of Identity

1/ The Ministry shall decide to apply change of identity only where it ascertains that other types of protection measures are incapable of protecting the security of the protected person.

2/ The protected person shall discharge his legal obligations towards third parties before change of his identity becomes effective.

3/ Notwithstanding sub-article (2) of this Article, the Ministry may, where it ascertains that the protected person is unable to discharge his obligations, allow the change of identity to become effective upon settling the obligations by itself.

16. Rights and Obligations Continuing After Change of Identity

1/ A protected person may appoint an agent to enjoy the rights and discharge obligations that may continue after change of identity.

2/ The Ministry shall require the protected person to discharge his obligation where it learns that he has a legal obligation that he is not aware of.

3/ Where the protected person is unable or unwilling to discharge his obligations under sub-article (2) of this Article, the Ministry may settle the obligations by itself or terminate the protection agreement, as the case may be.

17. Issuance of New Personal Documents

1/ The Ministry shall, where it decides to implement a protection measure involving the change of identity, enter the particulars of the original and the new identity of the protected person in records specifically designed for such purpose. It shall keep the records in such a way that unauthorized persons may not trace the original identity of the protected person from the new identity information or vice versa.

2/ Bodies competent to issue identification and other related documents shall have the duty to issue appropriate new documents to the protected person on the basis of information provided to them by the Ministry.

18. Communications of the Protected Person

Any communication regarding the rights and obligations of a protected person whose identity and property ownership has been changed or concealed shall be made through the Ministry with his consent.

19. Pre-Protection Offences

1/ Where court orders that a protected person attend a criminal trial for an offence he committed before the entitlement of protection, the Ministry shall produce him before the court.

2/ Where the protected person appears before it in accordance with sub-article(1) of this Article, the court shall conduct the proceeding in such a way that the participation of the protected person may not prejudice the purposes of the protection.

20. Pre-Protection Testimony

A protected person required to appear as a witness for criminal offence committed before the implementation of the protection agreement shall be served with summons and appear before court through the Ministry.

21. Civil Suit in Original Identity

1/ Where necessary, a protected person may take part in a civil proceeding in his original identity with the consent and directions of the Ministry.

2/Where the Ministry disapproves the participation of a protected person in a civil proceeding in his original identity, the protected person may participate in the proceeding through his agent.

22. Restoration of Original Identity

1/ The Ministry shall decide to restore the original identity of a protected person:

a)where the time prescribed in the protection agreement expires or it believes, prior to the expiry of the agreement, that protection measures other than change of identity could ensure the security of the protected person; and

b)it ascertains that change of identity may not entail a major impact on the status of third parties such as marriage and paternity or maternity.

2/ The Ministry shall notify the protected person and give him the opportunity to forward his opinion before restoring his original identity pursuant to sub-article (1) of this Article.

3/ A protected person shall, upon restoration of his original identity, return the new personal identification and other related documents to the Ministry.

4/ The Ministry shall ensure that the protected person has been provided, by the concerned bodies, with personal identification and other related documents in his original identity upon return of his new personal identification and other related documents in accordance with sub-article (3) of this Article.

5/ Bodies competent to issue personal identification and other related documents shall have the duty to issue the required documents to the protected person in his original identity on the basis of information provided to them by the Ministry.

6/ The Ministry shall ascertain that the legal obligations of the protected person entered into in his new identity remain intact after restoration to the original identity.

PART FIVE MISCELLANEOUS PROVISIONS

23. Responsibilities of Organs of Justice

1/ The concerned court shall have the responsibility to ensure that protection measures provided in sub-article (1) from

(g) to (k) of Article 4 of this Proclamation are taken as may be appropriate.

2/ The concerned prosecutor:

a)shall have the responsibility to carry out the functions of a prosecutor provided for under sub-article (1) (b) of Article 6 of this Proclamation; and

b)may apply to court for the enforcement of protection measures provided for under Article 4 sub article (1) from (g) to

(k) and (t).

3/ The concerned investigator shall have the responsibility to carry out the functions of an investigator provided for under sub-article (1) (b) of Article 6 of this Proclamation.

24. Confidentiality

1/ Records and information relating to a protected person shall be classified as strictly confidential and kept accordingly.

2/ Any person may not have access to the records referred to in sub-article (1) of this Article except with the authorization of the top leadership of the Ministry.

3/ Notwithstanding sub-article (1) of this Article, beneficiary of protection or former beneficiary of protection:

a)consents to the disclosure;

b)has already disclosed the information;

c)where disclosure of the information is necessary to investigate a criminal offense punishable with ten or more years of rigorous imprisonment or death; or

d)his testimony found necessary to prove the innocence of another suspect in the criminal case;

the Ministry may disclose the information.

4/ To disclose the information of beneficiary of protection or former beneficiary of protection on the basis of sub article (3) (c) or (d) of this Article the following shall have to be taken into consideration:

a)the impact of disclosure of information on beneficiary of protection or former beneficiary of protection; and

b) absence of alternatives other than disclosing the information.

5/ A person to whom information is disclosed in accordance with sub-article (3) of this Article shall use it only for the purpose for which it has been disclosed.

25. Submission of Grievance

1/ Any person who has applied for protection or a person who is or was under protection may submit to the Minister his grievance on a decision of the concerned officer of the Ministry within 15 days from receipt of the decision.

2/ The Minister shall decide on a grievance submitted in accordance with sub-article

(1) of this Article within 10 consecutive working days. The decision of the Minister shall be final and may not be appealable to court.

26. Credibility of Testimony

The fact that a witness is entitled to protection in accordance with this Proclamation may not be invoked as a ground to diminish the credibility of his testimony.

27. Agreement with other Bodies

1/ The Ministry may conclude agreements with organs of federal or regional states for the implementation of protection granted pursuant to this Proclamation.

2/ The government may conclude bilateral or multilateral treaties in order to provide effective protection to witnesses and whistle blowers.

28. Duty to Cooperate

Every person shall have the duty to cooperate for the implementation of this Proclamation, when requested by the Ministry.

29. Penalty

1/ Any protected person who:

a)contravenes sub-article (1) (a) of Article 11 of this Proclamation shall be punishable with rigorous imprisonment not exceeding ten years. Where, however, in a criminal case, the accused person has been wrongly convicted or has incurred rigorous imprisonment of more than ten years in consequence of the witness’s act, the witness may himself be sentenced to the punishment which he has caused to be wrongfully inflicted;

b)without good cause fails to return the new identification and other related documents in accordance with sub-article (3) of Article 22 of this Proclamation shall be punished with simple imprisonment up to three years or with fine up to Birr 10,000 or with both;

c)refuses to cooperate with the Ministry in accordance with Article 28 of this Proclamation shall be punishable with not less than six months simple imprisonment or with fine not exceeding Birr 10,000 or with both;

d)contravenes sub article (1) (c) of Article 11 of this Proclamation and perform activity that obstructs the protection shall be punishable with rigorous imprisonment not less than one year and not exceeding five years or with fine not less than Birr 50,000 and not exceeding Birr 500,000 or with both.

2/ Any person who violates other provisions of this Proclamation shall be punishable in accordance with the relevant provisions of the Criminal Code.

30. Transitory Provision

Any protection agreement concluded before the coming into force of this Proclamation shall, in so far as it is consistent with the provisions of this Proclamation, be deemed to have been entered into according to this Proclamation.

31. Power to Issue Regulation and Directive

1/ The Council of Ministers may issue regulations necessary for the implementation of this proclamation.

2/ The Ministry may issue directives necessary for the implementation of this Proclamation and regulations issued pursuant to sub-article (1) of this Article.

32. Inapplicable Laws

No law or customary practice may, in so far as it is inconsistent with this Proclamation, be applicable with respect to matters provided for by this Proclamation.

33. Effective Date

This Proclamation shall enter into force on the date of its publication in the Federal Negarit Gazeta.

Done at Addis Ababa, this 11th day of February, 2011

GIRMA WOLDEGIORGIS PRESIDENT OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

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2 responses

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