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Draft Bill for the Protection of Victims of Crime and Witnesses

An Act to provide for the establishment of the National Authority for the Protection of Victims of Crime and Witnesses; to provide for the protection and promotion of the rights of Victims of Crime and Witnesses; to provide for the protection 0/victims of crime and witnesses, to set out the rights and entitlements of Victims of Crime and Witnesses ;for the establishment of the Victims Compensation and Victim and Witness Protection Fund; and/or matters/or connected therewith or incidental thereto.

Be it enacted by the Parliament of the Democratic Socialist Republic of Sri Lanka as follows,

Part I

1.
This Act may be cited as the Protection of Victims of Crime and Witnesses, Act No …… of 2006.
Short Title
2.

The objects of this Act shall be to

(a) provide for the establishment of the National Authority for the Protection of Victims of Crime and Witnesses;
(b) stipulate the functions and powers of the National Authority for the Protection of Victims of Crime and Witnesses;
(c) stipulate the organizational structure of the National Authority for the Protection of Victims of Crime and Witnesses and to provide for the effective management of the said Authority
(d) stipulate the rights and entitlements of victims of crime and witnesses and to provide for mechanisms for the enforcement and enjoyment of such rights and entitlements;
(e) provide for the rendering of assistance and protection victims of crime and witnesses;
(f) enable victims of crime to obtain compensation from persons convicted of having committed offences against them;
(g) provide for the establishment of the Victim Compensation and Victim and Witness Protection Fund;
(h) provide for the establishment of the Victim and Witness Protection Division of the Sri Lanka Police Department;
(i) provide for the duties and responsibilities of judicial officers and public officers towards the promotion of rights and for the protection and providing of assistance to victims of crime and witnesses; and
(j) stipulate certain offences that may be committed against victims of crime and witnesses; and
(k) provide for matters connected therewith or incidental thereto.

Objects of the Act
3.
(1) There shall be an Authority called the National Authority for the Protection of Victims of Crime and Witnesses (hereinafter referred to as ‘the authority’).
(2) The authority shall, by the name assigned to it by subsection (I), be a ba corporate with perpetual succession and common seal, and may sue and be sued in such name.
National Authority for the protection of victims of crime and witnesses.
4.

(1) The formulation of policy and supervision of the administration and management of the affairs of the authority shall be vested in a Board of Management (hereinafter referred to as ‘the Board’).

(2) The Board shall comprise of five members including the Chairman of the Board. The Board shall consist of –

(a) two members academically or professionally qualified and / or experienced in fields of professional activity associated with the criminal justice system, appointed by the Minister in charge of the subject of justice;
(b) a nominee of the Attorney General;
(c) Secretary to the Ministry of the Minister in charge of the subject of Justice or his nominee; and,
(d) a nominee of the Inspector General of Police holding--the- rank of an Senior Deputy Inspector General of Police.

The Minister shall appoint the Chairman

(3) The provisions of the first schedule to this Act shall apply to the resignation and removal of, the term of office of, and the remuneration payable to, the members of the Board.

Board of Management
5.

(1) There shall be a Director General of the Authority who Director General shall be in charge of the management and administration of the affairs of the Authority.

(2) The Director General-of the Authority shall be the chief executive officer of the Authority.

(3) The Director General shall be appointed by the Board of Management in consultation with the Advisory Commission.

Director General
6.
The functions of the Authority shall be to —

(a) promote recognition of, and respect for, the rights of victims of crime;
(b) promote the recognition of and respect for the entitlements of victims of crime and witnesses?
(c) cause the protection of the rights and entitlements of victims of crime
(d) advice or make recommendations to the Sri Lanka Police departments and statutory institutions, and to pubic officers either generally or on a case by case basis, on appropriate and specific measures to be taken, adopted or implemented with the view to giving effect to the enjoyment of rights and entitlements of victims of crime and witnesses, and in particular regarding the providing of (a) effective protection, (b) necessary rehabilitation and (c) other assistance, to victims of crime, members of their families and witnesses;
(e) review existing Legislation, practices-and procedures for their conformity with internationally recognized standards relating to the promotion and protection of the rights and entitlements of victims of crime and witnesses, and based on such review, to make recommendations to appropriate authorities for the adoption, amendment and application of relevant legislation, practices;
(f) take measures to sensitize public officers involved in the enforcement of the law (including but not limited to, officers of the Sri Lanka Police, the Prison Department government medical officers, and public officers associated with probation and social services), on needs of victims of crime and witnesses, and on the special needs of particular categories of victims of crime arising from the harm inflicted on them or from their gender, religion, language, cultural beliefs and practices, ethnic or social origins or disabilities;
(g) promote and recommend the observance and application of codes of conduct and internationally recognized standards relating to the protection of the right of victims of crime and entitlements of witnesses by courts of law, public officers and employees of statutory bodies involved in the enforcement of the law (inc but not limited to, officers of the Sri Lanka Police, the Prison Department, government medical officers, and officers of government social service institutions);
(h) conduct or promote the conduct of research into ways in which incidents of crime can be reduced or prevented and victims of crime can be rehabilitated, assisted, compensated and protected;
(i) recommend to appropriate government institutions social, health, educational, economic and crime prevention policies, for the reduction of incidence of crime and for facilitating assistance and protection to victims of crime;
(j) recommend the adoption of measures of restitution to victims of crime of crime as a sentencing option in the criminal justice system;
(k) make recommendations generally, for the prevention, detection, investigation and the prosecution, of offences; and
(l) promote community participation in crime prevention.
Functions of the Authority.
7.

The Authority shall have the power to —

(a) acquire, hold, take, or give on lease or hire, mortgage, pledge, sell or otherwise dispose of any movable or immovable property;
(b) enter into all such contracts as may be necessary for the proper discharge of it’s functions;
(c) open and maintain, current, savings or deposit accounts in banks;
(d) appoint, dismiss, and exercise disciplinary control over, employees, contractors, consultants, advisors as nay be necessary for the proper discharge of it’s functions;
(e) accept and receive, gifts, bequests and grants from sources in Sri Lanka or aboard, and to apply them for the proper discharge of it’s functions;
(f) determine the remuneration payable including the salaries, allowances and other conditions of employment applicable to the Director General, other employees, contractors, advisors and consultants of the Authority; and
(g) generally, to do all such other things as may be necessary for the proper discharge of it’s functions.

Powers of the Authority.
8.

(1) There shall be an Advisory Commission on Victims of Advisory Crime and Witnesses (hereinafter referred to as ‘the Advisory Commission’) to advice the Board of Management and the Director General on the policy and overall direction to be adopted by the Authority and, the general discharge of the functions of the Authority.

(2) The Advisory Commission shall consist of –

(a) the Chief Justice or his nominee;
(b) the Attorney General or his nominee;
(c) the President or nominee of the President of the Bar Association of Sri Lanka;
(d) Inspector General of Police or his nominee holding the rank of Senior Deputy Inspector General of Police;
(e) the Chairman of the Legal Aid Commission;
(f) five persons appointed by the Minister in charge of the subject of justice, who are academically or professionally qualified and or experienced in medicine and more particularly psychological medicine, promotion and protection of human rights, social service or welfare, probation and rehabilitation of victims of crime ; and,
(g) one person appointed by the Minister in charge of the subject of justice, who has experience in voluntary social service in the area of the promoting and protecting the rights of victims of crime and providing assistance to victims of crime and who shah represent non-governmental organizations working in the field of providing assistance to victims of crime.

(3) The provisions of paragraphs (1), (2), (3), and (4) of the first schedule to this Act shall, mutatis mutandis, apply to members of the advisory commission appointed under paragraph (g) of subsection (2).

(4) The Advisory Commission shall meet once a month or more frequently to discharge its functions.

(5) It shall be the duty of the Board of Management and the Director General to act on the advice of the Advisory Commission.

Advisory Commission.
9.
Members of the Board of Management, the Director General and other employees of the Authority, and members of the Advisory Commission, consultants and advisors of the Authority when they discharge functioned of the Authority, shall be deemed to be public officers.
Officials of the Authority deemed to be public officers.
 
PART II
 
10.

(1) A victim of crime has

(a) the right to be treated with fairness and with respect for his or dignity and privacy;
(b) the right to receive, through formal and informal procedures available, prompt and fair redress for the harm which he has suffered;
(c) the right to be informed of the remedies available in law for the redress of the harm which he has suffered;
(d) the right to be informed of;
(i) the dates fixed for the hearing,
(ii) the progress and disposal,
of judicial proceedings relating to the relevant offence, and his role and entitlements in such proceedings;
(e) the right to be informed of
(i) the release on bail, and the discharge of the suspect,
(ii) institution of criminal proceedings against the accused,
(iii) conviction, sentencing or acquittal of the accused,
(iv) release from prison of the convict, who had committed or is alleged to have committed an offence and inflicted harm or suffering on the relevant victim of crime;
(f) the right to be present at all judicial proceeding relating to the relevant offence, unless the court determines that his or her evidence would be materially affected if he or she heard other evidence at such proceedings;
(g) the right to be reasonably protected, and to have his family protected, from intimidation and retaliation;
(h) the right to be informed of medical and social services and other assistance available for the treatment and amelioration of the harm caused to him or her;
(i) the right to be represented at the several stages of the criminal proceedings relating to the relevant offence and to be provided with legal assistance for such purpose;
(j) following the conviction of the offender and prior to the determination of the sentence, the right to either personally or through legal counsel submit to court the manner in which the relevant offence had impacted on his body, state of mind, employment, profession or occupation, income, family, quality of life and / or property.

(2) It shall be the duty of every public and judicial officer to respect, protect and advance the rights referred to in subsection (1).

(3) A victim of crime shall be entitled to apply to the Authority and obtain financial assistance to receive medical treatment for bodily or mental injury or impairrment suffered as a result of being subject to an offence.

(4) A victim of crime or a witness who has reasonable grounds to believe that harm may be inflicted on him in relation to his cooperation with an investigation into an offence or participation or intended participation in any judicial proceedings, shall be entitled to seek protection from real or possible harm arising out of or aimed at retaliation or intimidation in relation to or in consequence of his cooperation with a law enforcement authority or testimony given before any court of law or intended testimony to be given in a court of law.

(5) A request for protection in terms of subsection (4) of this section shall be made to the Authority or to the Victim and Witness Protection Division of the Sri Lanka Police Department or to the officer-in charge of any police station.

(6) An officer-in charge of a police station who is in receipt of a request made in terms of subsection (5) of section, shall promptly take steps to inquire into the request made for protection, and if circumstances so require forthwith provide necessary protection, and immediately communicate the receipt of such request and information pertaining to action taken by him following the receipt of such request, to the Authority and to the Victim and Witness Protection Division of the Sri Lanka Police Department.

Rights and entitlements of victims of crime.
11.

(1) Notwithstanding anything to the contrary in the Judicature Act and the Code of Criminal Procedure Act, every High Court and Magistrates Court may upon conviction of a person by such Court, order the convicted person to pay compensation in an amount not exceeding one million rupees.

(2) Before making a determination on quantum of compensation to be paid, the presiding Judge shall call for and examine material re to the victim of crime including the report of the government medical officer who had examined the victim and other material that may e the court to determine the nature and- the extent of damage, toss or harm that the victim of crime may have suffered as a result of being subject to the offence the persons convicted of had been charged.

(3) Following the payment of such compensation, the presiding Judge shall after apportioning ten percent of such monies paid to be remitted to the Victim Compensation and Victim and Witness Protection Fund and deducting any sum of money the victim nay have already received from the Victim Compensation and Victim and Witness Protection Fund, determine the manner in which the remaining sum of money should be paid to the victim of the relevant offence and other persons who may have suffered from the commission of such offence.

(4) Following the payment of such compensation, the presiding Judge shall direct the payment of ten percent of the relevant sum of money and any sum of money which may have already been paid to the relevant Victim of Crime from the Victim Compensation and Victim and Witness Protection Fund to the said Fund.

(5) In the event of the accused failing to pay compensation ordered, the presiding Judge shall determine the default term of imprisonment the convict shall be required to serve in lieu of the non-pay of compensation.

(6) The receipt of compensation made in terms of sub section (1) of this section shall not prejudice or bar a victim of crime from claiming damages in any civil proceedings. Provided however, when determining the quantum of damages to be awarded, such court shall pay due regard to the compensation already received by such victim of crime.

Compensation
12.

(1) There shall be a Find dalled the Victim Compensation and Victim and Witness Protection Fund (hereinafter referred to as ‘the Fund’).

(2) The fund shall be administered and managed by the Authority.

(3) There shall be paid into the Fund –

(a) all such sums as may be voted by the Parliament for the Victim Compensation and Victim and Witness Protection Fund;
(b) all such sums as may be received by the Authority to be remitted to the Victim Compensation and Victim and Witness Protection Fund as gifts, bequest and grants from local and foreign sources;
(c) ten percent of all monies collected by the High Courts and Magistrates Court paid to such courts in consequence of orders for the payment of compensation made by such courts and any further sum of money that may be remitted to the Victim Compensation and Victim and Witness Protection Fund by the said courts.

(4) There shall be paid out by the Fimd all such sums as may be determined by the Authority, for the payment of –

(i) compensation to victims of crime who have as a result of offences being inflicted on them sustained bodily injury or impairment of physical or mental health;
(ii) compensation to dependants and next of kin of victims of crime who have died physically or mentally incapacitated;
(iii) monies necessary to rehabilitate victims of crime;
(iv) monies to provide assistance to victims of crime; and
(v) monies necessary to provide protection to victims of crime and witnesses.
(vi) a portion of the sum of money that may be required for the Victim and Witness Protection Division of the Sri Lanka Police Department for the discharge of its duties.

(5) The Director General shall be the principal accounting officer of the Fund and shall cause proper accounts to be kept of the income and expenditure, and assets and liabilities, of the Authority.

(6) The Auditor General shall audit the accounts of the Authority, including the accounts of the Victim Compensation and Victim and Witness Protection Fund.

Victim Compensation and Victim and Witness Protection Fund.
13.
A victim of crime shall be entitled to apply to the Authority (a) for the payment of compensation in respect of bodily or mental injury or impairment, or for damage to property suffered as a result of being subject to an offence and; (b) for the payment of monies required to obtain medical treatment or rehabilitation services in relation to bodily or mental injury or impairment suffered as a result of being subject to an offence.
Entitlement to apply for compensation and assistance.
14.

(1) The Sri Lanka Police Department shall establish and maintain a Division named the ‘Victim and Witness Protection Division’, for the protection of victims of crime and witnesses, and to set in place and implement a program to provide effective measures for the protection of victims of crime and witnesses from existing or potential retaliation and intimidation. Such protection measures shall include protection during the conduct of criminal investigations, and protection before, during and after judicial proceedings.

(2) It shall be the duty of the Division to establish and maintain a ‘Victim and Witness Protection Programme’ and to take effective measures to provide protection to victims of crime and witnesses from potential or existing retaliation and intimidation.

(3) The Division shall give effect to and implement advice and recommendations made to the Sri Lanka Police Department by the Authority.

(4) The Division may undertake the admission of a victim or witness into its Victim and Witness Protection Programme on
a. a recommendation made by the Authority;
b. a request made by a victim of crime or witness
c. a report submitted by a law enforcement agency; or
d. a communication received from a court.

(5) The provision of protection to a victim of crime or witness shall be effected by the Division after the conduct of a threat assessment.

(6) When a request for assistance is made by the Division, it shall be the duty of government and statutory institutions and public servants to assist the Division in providing protection to victims of crime and witnesses.

Victim and Witness Protection Division.
15.

(1) A court which has reasonable grounds to believe that a victim of crime or a witness in judicial proceedings before such court requires protection from retaliation or intimidation, shall take necessary steps to cause necessary protection to such victim of crime or witness. Such protection shall include the conduct of judicial proceedings in camera and the adoption of appropriate measures to prevent disclosure of the identity or testimony of such victim of crime or witness to persons other than the relevant accused and his pleader.

(2) A court which has reasonable grounds to believe that a victim of crime or a witness in judicial proceedings before such court requires protection from retaliation or intimidation, shall take steps to issue a communication to such effect to the Authority and to the Division.

(3) A law enforcement authority of any public servant including a government medical officer who has reasonable grounds t believe that a victim of crime or a witness requires protection from retaliation or intimidation or assistance, shall promptly issue a communication to such effect to the Authority and to the Division.

Protection in Courts and Communication by courts, by law enforcement authorities and public servants.
 
PART III
 
16.

(1) Whoever threatens a victim of crime or a member of the family of a victim of crime or a witness with any injury to his person, reputation, or property, or to the person or reputation of any one on whom such victim of crime or witness is interested with intent to cause alarm to such victim of crime or witness to refrain from instituting a complaint against such person with a law enforcement authority, or not to testify truthfully at any judicial proceedings or to compel such victim of crime to withdraw a complaint or legal action instituted against such person, commits an offence, and shall upon conviction by a High Court be sentenced to a term of imprisonment not less than three years and not exceeding ten years and to a fine.

(2) Whoever voluntarily causes hurt to a victim of crime or a member of the family of a victim of crime or a witness, with the intent to cause such victim of crime or witness not to institute a complaint against such person with a law enforcement authority or not to testify truthfully at any judicial proceedings or to compel such victim of crime to withdraw a complaint or legal action instituted against such person, or in retaliation for the making of a statement by such victim of crime or witness or testimony provided by such victim of crime or witness in a court of law against such person, commits an offence, and shall upon conviction by a High Court be sentenced to a term of imprisonment not less than three years and not exceeding ten years and to a fine.

(3) Whoever voluntarily causes grievous hurt to a victim of crime or a member of the family of a victim of crime or witness, with the intent to cause such victim of crime or witness not to institute a complaint against such person with a law enforcement authority or not to testify truthfully at any judicial proceedings or to compel such victim of crime to withdraw a complaint or legal action instituted against such person, or in retaliation for the making of a statement by such victim of crime or witness or testimony provided by such victim of crime or witness in a court of law against such person commits an offence, and shall upon conviction by a High Court be sentenced to a term of imprisonment not less than five years and not exceeding twelve years and to a fine.

(4) Whoever wrongfully restrains a victim of crime or a member of the family of a victim of crime or a witness in such manner as with the intent to prevent such victim of crime or witness from instituting a complaint against such person with a law enforcement authority or testifying in any judicial proceedings against such person, or to compel such victim of crime to withdraw a complaint or legal action instituted against such person, or in retaliation for the making of a statement by such victim of crime or witness or testimony provided by such victim of crime, or witness in a court of law against such person, commits an offence, and shall upon conviction by a High Court be sentenced to a term of imprisonment not less than five years and not exceeding twelve years and to a fine.

(5) Whoever by force compels, or by deceitful means, or by abuse of authority or any other means of compulsion, induces any person to go from any place, with the intent to prevent such victim of crime or witness from instituting a complaint against such person with a Jaw enforcement authority or testifying in any judicial proceedings against such person or in retaliation for the making of a statement by such victim of crime or witness or for the testimony provided by such victim of crime or witness in any judicial proceedings against such person, commits an offence, and shall upon conviction by a High Court be sentenced to a tern of imprisonment not less than five years and not exceeding twelve years and to a fine.

(6) Whoever, with intent to cause or knowing that he is likely to cause wrongful loss, damage, or destruction to the property of a victim of crime or a member of the family of a victim of crime or witness, causes such loss, damage, or destruction of the property of a victim of witness, with the intent to preventing such victim of crime or witness making a statement against such person to a law enforcement authority or testifying against such persons in any judicial proceedings, or in retaliation for such victim of crime or witness making a statement to a law enforcement authority or testifying against such person in any judicial proceedings commits an offence, and shall upon conviction by the High Court be sentenced to a term of imprisonment not less than five years and not exceeding twelve years and to a fine.

(7) Any person who attempt to commit, instigates any other to commit, engages in any conspiracy for the commission of or intentionally aids another to commit an offence under subsections (1), (2), (3), (4), (5) or (6) of this section, shall also be guilty of an offence, and according shall he upon conviction by the High Court he sentenced to the punishment provided for that offence by this Act.

(8) Offences under subsections (1), (2), (3), (4), (5), (6) and (7) of this section shall be cognizable, and non-bailable, and no person suspected, accused or convicted of an offence shall be enlarged on bail unless under exceptional circumstances by the court of appeal.

(9) Trials against persons accused of having committed offences under subsections (1), (2), (3), (4), (5), (6), and (7) of this section shall be taken up before any other business of that court and shall be held on a day to day ‘basis and shall not be postponed during trial unless due to unavoidable circumstances.

Offences against victims and witnesses.
17.

17 (1) No person shall in judicial proceedings be compelled to divulge that a victim of crime or a witness is receiving or has received assistance or protection in terms of this act.

(2) No person shall otherwise than in accordance with provisions of this act or in accordance with any other la, divulge to any other person that a victim of crime or witness is receiving or has received assistance or protection.

(3) That a victim of crime or a witness is receiving or has received assistance or protection in terms of this act, shall not be a criteria for the assessment of the credibility of the testimony of such victim of crime or witness.

Secrecy
18.

(1) The Minister in charge of the subject of justice may on the recommendation of the Authority make regulations for under this Act in respect of all such matters as are necessary for giving full force and effect to the principles and provisions of this Act.

(2) Every regulation shall be published in the Gazette and shall come into force on the date of such publication or on such later date as may he specified in the regulation.

(3) All regulations made under this Act shall as soon as convenient after their publication in the Gazette, be brought before the Parliament for approval. Any such regulation which is not so approved shall be deemed to be recinded as from the date of its disapproval, but without prejudice to anything done thereunder.

Regulations.
19.

19 In this Act unless the context otherwise requires –

‘victim of crime’ means a person who has suffered harm (including physical or mental injury, emotional suffering, economic loss or infringement of a fundamental rights), as a result of an act or omission which constitutes an offence under any law, and includes a person who has suffered harm by intervening to assist a victim of crime or to prevent the commission of an offence and shall further include the next of kin of such victim of crime and dependents of victims of crime;

‘witness’ means any person or a member of the family of such person who –

(a) has provided information to any law enforcement officer and based upon whose information an investigation has commenced in connection with the alleged commission of an offence,

(b) in the course of an investigation conducted by a law enforcement authority into the alleged commission of an offence provided information or made a statement containing an account of matters in respect to which such persons had been questioned,

(c) has reasonable grounds to believe that he shall be summoned by a court of law to testify in any judicial proceedings against a person based on a statement made by such person to a law enforcement authority,

(d) has received summons from a court of law to testify, or produce any document, report or object in any judicial proceedings,

(e) being a public servant has investigated into the alleged commission of an offence,
and shall include a victim of crime.

Interpretation.

Posted on 2007-06-28



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