Article prepared by Elena María Domínguez Peco, Prosecutor, Madrid Provincial Prosecutor's Office
The decisive step taken by countries in the Latin American region, from the inquisitorial model to the adversarial model of criminal procedure, derived, among many other consequences, in a new model of Public Prosecutor’s Office that, while still holding as its very raison d’être the state’s exercise of punitive action, deploys its effects much further, becoming a guarantor of the legality of the process and a protector of the rights of the citizens who are involved in it. Of everyone’s rights: of the people being investigated, of those who are called on to collaborate with the justice system and, very especially, of the victims.
In terms of time, this change coincided with this new conceptualisation of victims. Victims who gradually ceased to be seen as mere procedural actors, elements of evidence, but rather as subjects recognised in law, with their own legal status that exceeds the process, although specified in it, and that, as such, victims must be recognised and respected by everyone, with the Public Prosecutor’s Office being guarantor of the latter.
Progress towards this new paradigm of Prosecutors’ Offices became visible, occurring in the region around 2008, coinciding with a decisive movement in favour of improving the right to access to justice. Such access constituted, not as the possibility of bringing criminal proceedings before a court, but as an antecedent right to resort to the justice system so that the State restores the balance broken by a crime and repairs the damage done.
In this context, the Santiago Guides for the Protection of Victims and Witnesses came into being, as minimum standards called upon to guide the actions of Prosecutors in the region. For more than a decade, they have fulfilled their mission as a beacon of new policies of public prosecutors’ offices, which is why the Ibero-American Association of Public Prosecutors now renews its commitment to this document.
To this end, a meticulous and rigorous updating process has been carried out, oriented by the ultimate goal of making the Guides even more effective, adapting them according to the practical experience acquired, and incorporating the legislative developments that, once again, turn them into a text which is at the forefront of the right of citizens to access justice.
The “Santiago Guides for the Protection of Victims and Witnesses. Version 2020” now comprise a more cohesive text, thanks to the inclusion of a chapter on general provisions whose effects impact favourably on the care and procedural treatment of victims, as well as on the protection of witnesses and other procedural subjects. It is a more inclusive text, achieved through the inclusion of new actors, such as confidants and, above all, it makes new groups of victims in special conditions of vulnerability visible. It is also a more expeditious text, differentiating between measures called to take effect within Public Prosecutor’s Offices, from those aimed at promoting their institutional role in the construction of public policies and in the implementation of social policies to support victims.
The new text, far from losing the essence (of the Santiago Guides), rather reinforces it, emphasising its nature as a minimum standards document, which each country must adapt to its regulatory framework and institutional reality. It is fully aware of the differences between the competences and structures of public prosecutors’ offices, with each matter containing operational and functional measures, but also guidelines for institution building, so that each Attorney General can evaluate which of them is appropriate to apply within their organisation.
Therefore, it is not a question of imposing measures, nor of standardising models, but rather of seeking common elements, premises with which to advance in the same direction in all the countries of the region. If we seek an explanatory and graphic example, when the 2020 Version Guides refer to witness protection programmes, they point to the necessity of having an office to implement and coordinate them. After indicating that it is desirable for such offices to maintain at least a functional relationship with public prosecutors’ offices, it expressly refers to the fact that in those countries where this is not the reality, the coordination of actions with the existing offices should be promoted. It is a matter of respecting models and seeking to ensure that, whatever the mechanisms that each country has equipped itself with, it is ensured that Prosecutors have adequate knowledge thereof and that they make use of them.
That is the spirit of the Guides, and it is in those terms that some new features in the text should be understood, such as the procedural treatment of confidants, meaning informants, informers and others who assist police with their enquiries, with the different nuances that these different categories of people entail. Each country may implement the specific measures it deems most appropriate for the categories that are legally envisaged. What is really significant is the recognition of the need for special care of persons in cases where legislation enables them to testify, as is the case in several countries in the region. And the most important thing to understand is that their protection will not necessarily derive from their inclusion in witness protection programmes, but from the fact that, when they do not collaborate due to not reaching an agreement in terms of protection, their right of defence must prevail, so that statements to their disadvantage made in the course of conversations may not be taken into consideration.
However, if one aspect of the new version of the Guidelines had to be highlighted, it would undoubtedly be the reordering and resignification, in many cases, of the rights that correspond to victims. As well as, the inclusion among groups in conditions of special vulnerability, of new groups that deserve particular attention and procedural treatment.
Such resignification comes together with victims having the leading role as far as mechanisms of evaluation and care are concerned. These mechanisms standing as the cornerstone of the model, insofar as they should constitute the victims’ first approach to the system; or, even better, from the system to the victims, establishing the guidelines for their subsequent interrelation.
From this point, the right to access under equal conditions is followed by the right to understandable information about the process and about their own role as victims, the catalogue of procedural rights that correspond to them and the way such rights should be exercised, the protection of their person and property, and the right to full reparation, through the legally authorised mechanisms.
The realisation of these rights constitutes the central core of the document, which focuses on procedural aspects, but respects the condition of the victim above the process, seeking the coordination of strategies with support and care from other areas, when necessary. This aspect is intensified in cases such as that of women who are victims of crimes of trafficking in persons for the purpose of sexual exploitation, or women who are victims of violence within the family.
In the same way, the treatment of groups in special conditions of vulnerability focuses on their procedural peculiarities, their need for extra protection measures, the facilitating of statements, etc., but they are always presented as part of a broader perspective, as part of a global strategy. Therefore, in these cases, the promotion of coordination and cooperation with third-party institutions is emphasised, with the ultimate and primary purpose of mitigating, as far as possible, the re-victimising effects that any process of whatever type involves.
Finally, one cannot fail to mention why this document is justifiably a regional one; in other words, the measures that it comprises transcend each State and that is what lends the subject matter an international perspective. Compiled into one single provision, without prejudice to specific statements for particular cases throughout the text, international cooperation measures play an extremely important role.
It is common that when speaking of international legal cooperation we think of coordinating investigations, looking for defendants and obtaining material proof across borders. However, the international aspect of victims’ rights is often what is most overlooked.
For this reason, the aim was to make this subject matter visible, emphasising the appropriateness of resorting to the existing cooperation mechanisms in the region, including inter-institutional cooperation, also known as simplified cooperation, which facilitates direct relationships between public prosecutors’ offices, in order to help to formal cooperation processes.
In short, the idea is reinforced that, on the one hand, the reparation of victims or protection of witnesses may require cooperation between public prosecutors’ offices and, on the other, that evidence should be subordinated, whenever possible, preserving it under adequate conditions, to the desire, appropriateness or need of victims to leave the country and, especially, to return to their State of origin.
For this reason, prosecutors are urged to seek solutions such as the practice of gathering evidence or documentary evidence before a trial, or the use of new technologies, and, consequently, public prosecutors’ offices are encouraged to promote the competent authorities to sign the international agreements necessary to promote the repatriation of victims.
This idea, like so many others, is part of the specific proposals that one of the countries in the working group made during the update process. And the fact is, that this small presentation of the Santiago Guides, 2020 version, cannot be finished off without placing value on the process itself, a two-year journey in which practically all the members of AIAMP participated in one way or another, be it as members of the two working groups which, in successive stages, led by the National Prosecutor’s Office of Chile and the Attorney General’s Office of Uruguay respectively, coordinated the reforms; either as members of the different sectoral networks that made contributions on specialised matters; either in the socialisation phases for the revision of the text in the light of national experience. This enriching process, in which texts were refined, initiatives added and proposals nuanced, was accompanied from the beginning by the EUROsociAL+ programme of the European Union, within the framework of its stable collaboration with AIAMP to promote the exchange of experiences, knowledge and good practices, which it has provided through technical assistance and inputs to the working group. These “Santiago Guides for the Protection of Victims and Witnesses Version 2020” have emerged from this collective effort. In terms of access to justice, they are called upon to be the benchmark for the region’s public prosecutors’ offices.