Communicated on 4 September 2018
FOURTH SECTION
Applications nos. 48442/16 and 48831/16
A against Romania and B against Romania
lodged on 11 August 2016
STATEMENT OF FACTS
1. The applicant in the first case, A, is a Romanian national, who was born in 1981. The applicant in the second case, B, is a Romanian national, who was born in 1978. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). The applicants are represented before the Court by Ms Diana-Elena Dragomir, a lawyer practising in Bucharest.
A. The circumstances of the case
2. The facts of the two cases, as submitted by the applicants, may be summarised as follows.
1. Background of the case
3. From 2002 to 2014 A worked in C’s law office. She worked directly with C. In 2004 B started working in the IT department of C’s law office. He accompanied C in all his electoral campaign travels. The applicants are in stable partnership with each other.
4. In 2014 both applicants stopped working for C because of significant delays in the payment of their salaries. According to the applicants, C had set as condition for paying their outstanding salaries that they make statements in his favour in a criminal investigation (see paragraph 5 below).
5. C was a known politician who held important positions both in his party and in the Government. In 2012 the prosecutor’s office for the fight against corruption attached to the High Court of Cassation and Justice (the D.N.A.) started a criminal investigation into alleged acts of corruption committed by C together with D. The investigation was highly mediatised.
2. Inclusion in the witness protection programme
(a) “Threatened witnesses” status
6. In February and August 2015 the applicants gave statements as witnesses before the prosecutor’s office in the investigation concerning their former employer and D. They were believed to have witnessed transactions between C and D which were of interest for the investigation. In August 2015 the prosecutor considered that their life may be in danger and offered to include them in the witness protection programme. In the presence of two representatives of the National Office for the Protection of Witnesses (Oficiul Naţional pentru Protecţia Martorilor, “the O.N.P.M.”, see paragraph 49 below), the prosecutor explained that, if the applicants accepted to enter the programme, they would be moved to a different town and nobody, not even the case prosecutor, would know their new location. They would need to break any contact with their friends and maintain limited contact with their families. They would have to sell all their possessions, as the O.N.P.M. could not bear the costs of storing them during the applicants’ absence. They were also informed that there were minimal chances of getting jobs in the new location. The applicants asked for time to consider the consequences.
7. On 28 August 2015 the prosecutor issued an order declaring the applicants “threatened witnesses” (martori ameninţaţi), a temporary measure aimed at offering them protection until their admission to the witness protection programme would be processed. According to the applicants, the prosecutor gave reassurance that their private life would not be affected by this temporary measure. It appears that on that date the prosecutor also drafted, in accordance with the applicable law, the “plan for measures”, a document indicating the scope of the protection as well as the measures taken, and detailing the concrete tasks of the police officers in charge of carrying out the measure (mentioned in the prosecutor’s order of 12 December 2016, see paragraph 24 below).
8. The prosecutor’s order of 28 August 2015 was a confidential document to which the applicants did not have access. Its content was described in other official documents which the applicants submitted to the Court. It appears that the prosecutor considered that there was a reasonable suspicion that the life and physical integrity of the applicants may be in danger, due to the statements they had given during the investigation. The applicants were declared “threatened witnesses” and were offered the protection guaranteed by Article 126 § 1 (a) part I and (b) of the Code of Criminal Procedure (“the C.C.P.”, see paragraph 47 below), that is: police surveillance and protection of their home, and constant police escort for them.
9. The applicants were never informed about the exact content of this order, the restrictions to their rights, or the scope of their protection.
10. The prosecutor’s order was transmitted to the chief police of the Bucharest police department, who was responsible for ensuring the applicants’ personal protection, via the Department for Special Actions (Serviciul de Acţiuni Speciale, “the S.A.S.”), and the protection of their home, via their local police station.
11. In order to benefit from the protection measures, the applicants were asked to sign a protection protocol drafted by the police. In accordance with the terms of the protocol, the applicants had to agree to the following:
- not to seek assistance by a lawyer (elected or court-appointed) during the protection programme;
- to allow the prosecutor to research their past and present financial situation;
- to announce 72h in advance any intention to travel.
Moreover, their protection was to cease when they left the country.
12. On 1 March, 7 July and 15 November 2016 the applicants refused to sign the protocol.
13. On 21 September and 21 October 2016 the S.A.S. informed the applicants that their protection had been ordered under the relevant provisions of the C.C.P., but that the concrete protection measures could only be implemented with their consent. It reminded them that they had on numerous occasions refused to sign the protection protocol proposed to them and explained that, even without their consent, the authorities were still bound by the prosecutor’s order to offer them protection. In reply to the applicants’ complaints, the same information was given to them by the Bucharest police section in charge of the protection of their home (on 12 October and 12 December 2016), by the Bucharest Police (on 4 October and 21 November 2016), and by the anti-corruption prosecutor’s office (on 31 October and 5 December 2016).
(b) “Protected witness” status
14. On 12 February 2016 the applicants gave their consent to being included in the witness protection programme. They reaffirmed their accord on 5 September 2016 and reiterated the hardship they endured since having been granted the status of threatened witnesses.
15. On 7 July 2016, under Law no. 682/2002 on the witnesses protection (see paragraph 49 below), the O.N.P.M. drafted the protection protocol concerning the applicants’ protection under the two limbs decided by the prosecutor, that is: police surveillance and protection of their home, and constant police escort for them (see paragraph 8 above); no other measures were included in it. The applicants refused to sign the protocol as they considered that it limited their fundamental rights.
16. On 29 June 2016 the D.N.A. asked the High Court of Cassation and Justice to lift the measure ordered in the applicants’ favour and to exclude them from the witness protection programme. The prosecutor argued that the applicants could not indicate any concrete circumstances confirming that they were in any danger. He also stated that the applicants did not cooperate with the police officers who were assigned for their protection and refused to sign the protection protocol thus blocking the protection. Moreover, the prosecutor argued that although it was for the police and the O.N.P.M. to take the concrete measures for the applicants’ protection, the authorities had been unable to do so in so far as the applicants had refused any restriction of their rights and freedoms.
17. On 25 August 2016 the High Court dismissed the prosecutor’s request. It considered that the reasons for the initial measure were still valid insofar as the High Court was still interrogating the persons indicted in the main proceedings for the alleged acts of corruption. The High Court further considered that it was the authorities’ fault that the protection protocol had taken such a long time to be presented to the applicants. It noted that the latter refused to sign it because the conditions imposed had not been negotiated with them in the presence of the prosecutor, as required by law. The High Court considered that the witness protection should continue within the limits set by the prosecutor in his order of 28 August 2015. In their communications with the Court, the applicants explained that they had not received a written copy of the High Court’s decision, as it was confidential.
18. On the date of the hearing (25 August 2016), the applicants declared, before the High Court, that they accepted the protocol. On 5 September 2016 they registered their agreement with the D.N.A.
19. On 10 January 2017 the High Court of Cassation and Justice noted that the prosecutor’s order of 28 August 2015 ceased to apply. On 16 January 2017 the D.N.A. asked the Bucharest Police to end the protection measures.
20. On 17 January 2017 the applicants were formally included in the witness protection programme run by the O.N.P.M.
3. Measures taken for the applicants’ protection within the witness protection programme
21. In their application to the Court, the applicants alleged that their protection had been deficient, negligent, and abusive and because of that the danger to their lives had increased.
22. In order to understand the scope of their personal protection, the applicants asked the S.A.S. officers to explain to them what to expect in practice from the protection measure. According to the applicants, the S.A.S. officers admitted that they had not received any instructions concerning their mission, which was the first of that kind, and that their regular assignment involved protection of public officials and magistrates.
23. As for the protection of their home, the applicants noted that instead of guarding their flat, the police officers were sometimes sleeping in their car, drinking on duty or even guarding the next door building. They did not carry any weapons to ensure effective protection. They had also left the liaison file (registru de predare-primire/registru de consemn) unattended in public places. The file included pictures of the applicants, confidential data about the purpose of the protection mission and other relevant information.
24. In this respect, on 15 February 2016 the police started an investigation against the officer in charge of the protection of the applicants’ home for having left the post unattended before the arrival of his replacement and for having misplaced the liaison file. On 12 October 2016 the prosecutor’s office attached to the Bucharest District Court decided not to prosecute. It found that the instructions given to the officers in charge of the protection had not been very clear about where to be when ensuring home protection (guard the applicants’ flat or the building entrance). It also concluded that it had been the applicants who had taken the liaison file without permission.
25. The applicants alleged that sometimes they were not allowed to leave their building as their S.A.S. team was not available. They were asked to call in advance and to wait for the S.A.S. officers to arrive at their home. In the beginning there was only one S.A.S. team assigned for their protection. That meant in practice that the applicants had to either travel together or one of them would have to be left behind in their flat. In February 2016 they were allocated a second S.A.S. team. The applicants further explained that they were only allowed to travel in the S.A.S. cars, solely from 7 am to 10 pm, and that they could not leave town. They were not allowed to leave home without observing these limitations, not even if they were willing to forgo the protection. The applicants also explained that the S.A.S. officers were conspicuous and carried unconcealed weapons, which often revealed the applicants’ status to the public. The applicants also noticed that the S.A.S. officers were filming them constantly during their travelling. Eventually, they started feeling threatened by the police officers in charge of their protection.
26. The applicants also described that, because of how the protection measures were being carried out, they had been unable to participate in important events in their families, such as weddings, christenings, memorial services (parastas).
27. B often got into arguments with the police officers because of the manner in which they ensured the applicants’ protection. For instance, on 26 October 2016 he was fined with 500 Romanian lei (RON) for offending a police officer; on 20 November 2016 he was fined RON 500 for not allowing the police officers access to his flat (B explained that the police officers had refused to give their names when they called on him; the fine was cancelled by the Bucharest District Court on 19 May 2017); on 27 December 2016 he was fined RON 1,000 for having posted on his personal social media account an offensive comment about police officers; and on 11 January 2017 he was fined RON 1,000 for offending a police officer in charge of his protection.
28. B recounted that on 11 February 2016 he had been left without protection because the only S.A.S. team they had had at that time had been accompanying the first applicant. He became aware that someone was following him and had felt threatened. He had called the emergency number and had been advised to go to the nearest police station to seek help. The police officers had ignored him at first and only after his insistence he had managed to see the chief of the police section who had promised him protection. B had been led to a room guarded by a police officer. After approximately two hours he had tried to go home, but was not allowed to leave the room. Eventually, he had managed to escape, only to be caught by the police officers in the court yard and dragged back by force. B had asked a passer-by to contact A and gave him her telephone number. The incident with the police had been filmed by the passer-by.
29. Before their admission to the “protected witness” programme, the applicants sought authorisation to carry guns, as they considered that they were not receiving genuine protection from the authorities. The Bucharest Police refused and advised them to seek such an authorisation form the O.N.P.M. They objected against the decision, arguing that only the “protected witnesses” could obtain the authorisation directly from the O.N.P.M., whereas they had been, at that time, in a different category, namely that of the “threatened witnesses”. They also lodged a constitutional complaint, considering that the threatened witnesses were being discriminated against in this matter. However, on 17 October 2017 the Constitutional Court dismissed their complaint. Consequently, the applicants withdrew their objection, as they estimated that it had no chance of success after the adoption of the Constitutional Court decision.
30. During the time when the temporary measure of protection for threatened witnesses was in force, A managed to find a new employment, but was soon invited by the new employer to resign, because of the intrusive presence of the S.A.S. agents. She complained about the termination of her employment with the National Council against Discrimination (Consiliul Naţional pentru Combaterea Discriminării). No information on this procedure was available at the moment of the last communication with the Court (13 March 2018).
31. B did not manage to find work and had no means of subsistence. Consequently, he asked the authorities to cover his medical expenses and to exempt him from paying the property tax. He pointed out that these benefits were awarded to the protected witnesses and he was in the process of becoming one, although at the moment his status was that of a threatened witness.
32. On 30 January 2017 the applicants lodged a request with the O.N.P.M. seeking financial help and presenting a detailed account of their expenses and tax obligations. They also sought, to no avail, the O.N.P.M.’s help in finding new jobs. Later on, as they considered that the authorities were unable to offer them a genuine protection, the applicants asked the O.N.P.M. to relocate them abroad. It appears that their latter request was rejected by the High Court of Cassation and Justice.
33. In a letter of 23 May 2017, the Police Inspectorate General and the O.N.P.M. informed the applicants that the O.N.P.M. was unable to offer them genuine protection. As for the possibility of helping them to find employment, the applicants were informed that in the private sector they were not accepted because of their involvement in the criminal investigation. They could not access any job offers and in the public sector either because of the family relations between the director of the Employment Agency and C. As for the financial assistance, according to the internal decisions taken by the Police Inspectorate General, any witness in the witness protection programme was offered the minimum salary in force, irrespective of their personal situation. Furthermore, it was impossible for the O.N.P.M. to proceed to a total change of the applicants’ identity, as the legislation did not allow for such a possibility and the State authorities had not yet established cooperation protocols in this respect. Moreover, the O.N.P.M. admitted that the protection measure that the applicants were benefiting from, namely a surveillance camera installed at the entrance of their home, was inefficient and insufficient. They considered that a total relocation should have been envisaged. The applicants continued to be threatened and, according to the authorities’ estimations, the applicants would need protection even after the end of the criminal proceedings at stake. The O.N.P.M. reiterated that, by means of a secret decision, the High Court of Cassation and Justice had rejected the requests made by the applicants (relocation abroad and change of identity), as well as those made by the O.N.P.M. on their behalf (change of address, permission to carry arms, and professional requalification).
34. On 28 August 2017 the applicants complained with the High Court of Cassation and Justice about the O.N.P.M.’s inability to assist them and to offer them genuine protection.
4. Complaints with the authorities about the measures for the witness protection
35. On 11 November 2015 the applicants complained, with the prosecutor’s office attached to the High Court of Cassation and Justice, that the police officers in charge of their protection had not been given clear instructions about their mission and that they had failed, on several occasions, to identify potential threats to the applicants’ security (such as somebody allegedly staking out their building or tampering with their car).
36. The applicants contacted on numerous occasions the Bucharest Police and the prosecutor’s office in order to complain about the manner in which the police officers ensured their protection. On 1 July 2016 they informed the prosecutor that they no longer cooperated with the protection teams.
37. On 4 May 2016 the applicants complained with the Bucharest Police that they had not received protection for their travels since 1 March 2016. In reply, on 31 May 2016, they were informed that their protection had been extended in order to be more efficient, and were reminded that the success of the mission depended on their cooperation.
38. In May 2016 the applicants lodged a criminal complaint with the chief prosecutor from the prosecutor’s office attached to the High Court of Cassation and Justice. They complained about failures of the protection programme and gave a detailed account of all the instances where they considered that their rights and freedoms had been abusively breached by the police officers in charge of their protection. They also complained about police abuse in respect of the incident of 11 February 2016 involving the second applicant (see paragraph 28 above).
39. On 27 July 2016 the applicants lodged another criminal complaint arguing that they had not been informed of the concrete measures envisaged for their protection and that they had not consented to the protection plan. Moreover, they complained about the alleged abuse committed by the police officers in charge of their protection. On 15 May 2017 the prosecutor’s office attached to the Bucharest Court of Appeal dismissed as unfounded the criminal complaint. On 7 June 2017 the applicants complained with the chief prosecutor against the prosecutor’s decision, but on 26 June 2017 their application was dismissed. Consequently, on 4 July 2014 the applicants complained against the two decisions by the prosecutors with the Bucharest Court of Appeal. They also argued that the other criminal complaints they had lodged had not been investigated by the prosecutor’s office. On 3 November 2017 the court dismissed their complaint as unfounded.
40. On 13 September 2016 the applicants brought another criminal complaint for abuse of power against the police officers in charge of their protection.
41. On 14 November 2016 they also formulated a criminal complaint against the police officers in charge of their protection, accusing them of abuse of office and of false, in so far as they considered that no protection protocol had been presented to them by the police. They considered that because of the police offices’ attitude, their admission to the witness protection programme had been delayed, causing them serious negative consequences. On the same day they lodged a criminal complaint against two S.A.S. officers who had allegedly forcibly refused to allow them to take their pet cat to the veterinary and had started filming them without their permission. The second applicant was handcuffed and thrown on the ground by the S.A.S. officers. On 24 August 2017 the complaint was dismissed as ill-founded by the prosecutor’s office attached to the Bucharest District Court of the Second Precinct. On 7 February 2018 the chief prosecutor upheld the decision.
42. On 17 March 2017 the applicants complained with the police that the officers in charge of their protection jeopardised the mission by publishing information about, and video recordings of the applicants on their social media accounts. On the same date, the applicants lodged another criminal complaint concerning alleged threats from police officers who had been placed under investigation following their previous criminal complaints.
43. On 13 February 2018 the prosecutor’s office attached to the Bucharest Court of Appeal dismissed as unfounded the applicants’ complaints about abuse of power concerning the manner in which the protection mission was carried out. They also concluded, based on the oral statements made by several police officers, that B had not requested their help on 11 February 2016 (see paragraph 28 above). The prosecutor also dismissed as unfounded allegations that on 7 May 2016 the second applicant had been aggressed by the S.A.S. officers. The prosecutor noted that the second applicant had been hostile towards the police officers who were protecting him. The decision also included several episodes when the second applicant had threatened the police officers with criminal complaints, had verbally abused them, filmed them, and had done his best to escape their surveillance.
5. The applicants’ current situation
44. The applicants alleged that in May 2016 they had been told unofficially by state agents that the constant harassment against them was aimed at intimidating them in order to make them withdraw their statements in the corruption case, and to prevent them from testifying in other similar cases against their former employer. At the same time, in November 2017 the applicants were summoned again to testify in another corruption file opened against C.
45. The applicants, both unemployed, have had to sell their possessions in order to be able to pay their taxes.
46. In November 2017 the applicants informed the Court that they had left Romania and that they were at that moment looking for work. In March 2018 the applicants informed the Court that the authorities had taken no additional measures for their protection.
B. Relevant domestic law
47. The relevant provisions of the Code of Criminal Procedure (“the C.C.P.”) concerning witness protection read as follows:
Article 125 Threatened witness
“If there is a reasonable suspicion that the life, corporal integrity, liberty, possessions or professional activity of a witness or of a member of his family may be in danger because of the information he offered or statements he made to the judicial authorities, the judicial authority in charge will grant him the status of threatened witness and will take one or several of the protection measures provided in Articles 126 and 127, as applicable.”
Article 126 Protection measures ordered during the criminal investigation
“(1) During the criminal investigation, when the prosecutor grants the status of threatened witness, he also takes one or more of the following measures:
(a) surveilling and protecting the witness’s home, or providing a temporary accommodation;
(b) accompanying the witness and offering protection to him or to members of his family during their travels;
(c) protecting the identity of the witness, by granting a pseudonym with which the witness will sign his statements;
(d) hearing the witness without him being present in the court room, via audio and video transmission, with distorted voice and image, when the other measures are insufficient.
(2) The prosecutor orders the measures on his own initiative, or at the request of the witness or another party.
...
(4) The prosecutor grants the status of threatened witness and orders the protection measures by means of a reasoned order which remains confidential.
(5) The prosecutor verifies at reasonable intervals if the reasons for the measure are still valid and if they are no longer, lifts the measure by reasoned order.
(6) The measures provided in paragraph 1 remain in place throughout the criminal proceedings if the danger has not ceased.
...
(8) The protection measures provided in paragraph 1 (a) and (b) will be transmitted to the authorities in charge of carrying out the measure.”
48. In accordance with Articles 127 and 128 of the CCP, these measures are decided by the court once the prosecutor has finalised the investigation.
49. The functioning of the National Office for the Protection of Witnesses (Oficiul Naţional pentru Protecţia Martorilor, “the O.N.P.M.”), the rights and duties of a protected witness, and the application and content of the protection are detailed in Law no. 682/2002 on the witness protection. The relevant parts read as follow:
Article 2
“In the present law, the words and phrases used have the following meaning:
(f) the witness protection programme, hereinafter “the Programme” consists of the activities undertaken by the [O.N.P.M.] with the assistance of the central and local public authorities, in order to protect the life, the corporal integrity and the health of persons who were granted the status of protected witnesses, in accordance with the provisions of the current law.
(g) the interim measures are specific temporary activities carried out by the police investigating the case or by the administration of the detention facility, as soon as the danger to the witness is discovered; ...
(i) the protection Protocol is a confidential agreement between the [O.N.P.M.] and the protected witness concerning the protection and the assistance required by the witness, the duties of [the signatories] and the situations in which the protection and assistance may cease.”
Article 5
“During the criminal investigation, the investigating authority can ask the prosecutor; and the prosecutor may ask the pre-trial judge [judecătorul de camera preliminară] or the court, during the pre-trail proceedings or the court proceedings respectively, to include a witness ... in the Programme, giving reasons for this proposal.”
Article 7
“The prosecutor, the pre-trial judge, or the court, as applicable, decides ... on the proposal to include [a witness] in the Programme as soon as possible but not later than 5 days from the date when the proposal was received.”
Article 8
“(1) If in agreement with the proposal, the prosecutor, the pre-trial judge or the court shall notify the decision to the O.N.P.M. ... which shall take the necessary measures to draft and enforce the protection scheme.”
Article 9
“(1) The O.N.P.M. shall draft a protection protocol for each individual concerned by the measure, within 7 day from the date when the decision to include [a witness] in the Programme was adopted.
(2) The persons mentioned in paragraph 1 become protected witnesses the moment they sign the protection protocol.”
Article 14
(1) The protection and assistance of the threatened witness and of the protected witness are ensured by the police and the O.N.P.M. respectively, in accordance with the present law.”
Article 15
“(1) Interim measures can be taken in order to protect the threatened witness, ...
(2) The interim measures remain in place as long as the danger persists or until inclusion in the Programme.”
Article 17
“(2) The Programme shall be ended by the prosecutor through an order or by the court through an interlocutory decision.”
50. In accordance with the provisions of Law no. 682/2002 on the witness protection, the witness protection programme is financed by the State budget (Article 21), and the authorities involved have a duty to cooperate among themselves and with similar authorities from other countries (Article 22).
C. Council of Europe materials
51. Recommendation Rec(2005)9 of the Committee of Ministers to Member States on the protection of witnesses and collaborators of justice (adopted by the Committee of Ministers on 20 April 2005 at the 924th meeting of the Ministers’ Deputies) reads as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
...
Recommends that governments of member states:
i. be guided, when formulating their internal legislation and reviewing their criminal policy and practice, by the principles and measures appended to this Recommendation;
ii. ensure that all the necessary publicity for these principles and measures is distributed to all interested bodies, such as judicial organs, investigating and prosecuting authorities, bar associations, and relevant social institutions.
Appendix to Recommendation Rec(2005)9
I. Definitions
For the purposes of this Recommendation, the term:
- “witness” means any person who possesses information relevant to criminal proceedings about which he/she has given and/or is able to give testimony (irrespective of his/her status and of the direct or indirect, oral or written form of the testimony, in accordance with national law), who is not included in the definition of “collaborator of justice”;
- “collaborator of justice” means any person who faces criminal charges, or has been convicted of taking part in a criminal association or other criminal organisation of any kind, or in offences of organised crime, but who agrees to cooperate with criminal justice authorities, particularly by giving testimony about a criminal association or organisation, or about any offence connected with organised crime or other serious crimes;
- “intimidation” means any direct or indirect threat carried out or likely to be carried out to a witness or collaborator of justice, which may lead to interference with his/her willingness to give testimony free from undue interference, or which is a consequence of his/her testimony;
- “anonymity” means that the identifying particulars of the witness are not generally divulged to the opposing party or to the public in general;
- “people close to witnesses and collaborators of justice” includes the relatives and other persons in a close relationship to the witnesses and the collaborators of justice, such as the partner, (grand)children, parents and siblings;
- “protection measures” are all individual procedural or non-procedural measures aimed at protecting the witness or collaborator of justice from any intimidation and/or any dangerous consequences of the decision itself to cooperate with justice;
- “protection programme” means a standard or tailor-made set of individual protection measures which are, for example, described in a memorandum of understanding, signed by the responsible authorities and the protected witness or collaborator of justice.
...”
52. The Appendix to Recommendation No. R (97) 13 of the Committee of Ministers of the Council of Europe, concerning the intimidation of witnesses and the rights of the defence, includes the following passage:
“...11. Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that:
– the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened; and
– the evidence is likely to be significant and the person appears to be credible.
12. Where appropriate, further measures should be available to protect witnesses giving evidence, including preventing the identification of the witness by the defence, for example by using screens, disguising the face or distorting the voice.
13. When anonymity has been granted, the conviction shall not be based solely or to a decisive extent on the evidence of such persons.
14. Where appropriate, special programmes, such as witness protection programmes, should be set up and made available to witnesses who need protection. The main objective of these programmes should be to safeguard the life and personal security of witnesses, their relatives and other persons close to them.
15. Witness protection programmes should offer various methods of protection; this may include giving witnesses and their relatives and other persons close to them a change of identity, relocation, assistance in obtaining new jobs, providing them with bodyguards and other physical protection.
16. Given the prominent role that collaborators of justice play in the fight against organised crime, they should be given adequate consideration, including the possibility of benefiting from measures provided by witness protection programmes. Where necessary, such programmes may also include specific arrangements such as special penitentiary regimes for collaborators of justice serving a prison sentence.”
COMPLAINTS
53. The applicants complain under Article 8 of the Convention that, because of the abusive and negligent manner in which the authorities ensured their protection both while they were considered “threatened witnesses” and after their inclusion in the witness protection programme, those authorities increased the danger they were leaving in and breached their right to respect for their private life. They consider that the legislative system in place for the protection of threatened witnesses is incoherent and unclear. Moreover, they complain that although they were not under criminal investigation, they were effectively prohibited from leaving home, from using their vehicle, and from maintaining a social life. They further complain about the constant surveillance and about the fact that they were filmed by the police officers without their consent.
54. The applicants argue that the measure taken by the prosecutor on 28 August 2015 (see paragraph 24 above) breached their right to freedom of movement, guaranteed by Article 2 of Protocol No. 4 to the Convention.
55. B also complains that the authorities failed to comply with their positive obligations enshrined in Article 2 of the Convention. In particular, they did not ensure him the possibility to have access to medical care. He considers that during the time when he was a threatened witness he was effectively under the control of the authorities.
56. Relying on Article 13 of the Convention, the applicants consider that they had no possibility to bring before a domestic court their grievances concerning the manner in which the protection programme was organised in their case and concerning the gross negligence committed by the persons entrusted with their protection.
57. Lastly, the applicants complain of a breach of Article 18, arguing that the State authorities abused their power with the aim of restricting the applicants’ rights and freedoms.
QUESTIONS TO THE PARTIES
1. Have the authorities dispensed with their obligation to secure practical and effective protection of the applicants’ right to life, as required under Article 2 of the Convention?
2. In particular, did the system for the protection of witnesses as put in place by the Code of Criminal Procedure and by Law no. 682/2002, and its application in practice to the applicants’ situation, offer sufficient safeguards for the protection of the applicants’ right to life?
3. Did the system for the protection of witnesses, and its application in practice to the applicants’ situation, offer sufficient safeguards for the protection of the applicants’ rights under Article 8 of the Convention?
4. Was the applicants’ right to respect for their private life restricted unjustifiably by virtue of the prosecutor’s order of 28 August 2015 and by the manner in which that order was carried out?
5. Has there been a violation of the applicants’ right to liberty of movement and freedom to leave the territory of the respondent State, contrary to Article 2 of Protocol No. 4, in particular in respect of the manner in which their protection was put in place?
6. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints under Articles 2, 8 and 2 of Protocol No. 4, as required by Article 13 of the Convention?
7. Were the restrictions imposed by the State in the present case, purportedly pursuant to Articles 8 of the Convention and 2 of Protocol No. 4 to the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention?
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