The status and conditions of use by the justice system of the so-called institution of the Crown’s child witness require refinement; this particularly concerns situations where the testimony of such a person is the only incriminating evidence that can lead to wrongful convictions – says the Commissioner for Human Rights.
Problems related to the functioning of the so-called small crown testimony institution, not only have not lost their relevance, but in light of the latest legislative initiatives of 2022, they require even more due consideration and the preparation of an adequate and comprehensive response, correcting the accumulated regulatory gaps and exponential doubts in the application of this institution.
– emphasized the Ombudsman Marcin Wiącek in a letter to the Ministry of Justice published Monday on the website of the Commissioner for Human Rights.
The term “little crown witness” refers to a perpetrator who then cooperates with law enforcement authorities in exchange for leniency for the crime committed. According to the current wording of the Criminal Code, “at the request of the public prosecutor, the court applies extraordinary mitigation of the sentence, and may even conditionally suspend its execution in relation to the perpetrator who cooperates with other persons in the commission of the crime, if he discloses to the body responsible for the prosecution of crimes, information about the persons who participated in the commission of the crime and the relevant circumstances of its commission.
At the request of the Public Prosecutor’s Office, the court may apply extraordinary clemency or even conditionally suspend its execution in relation to the perpetrator of a crime who, regardless of the explanations given in his case, revealed to a law enforcement authority and presented significant circumstances, previously unknown to this authority, of a crime punishable by a sentence of more than five years’ imprisonment.
— is also provided for in the Penal Code.
Constitutional doubts
In his speech, the Ombudsman pointed out that the current wording of these provisions has taken this form since autumn 2023, following the amendment adopted in 2022, and now “only at the request of the Public Prosecutor’s Office, the court applies extraordinary clemency to such a person and may conditionally suspend his execution”.
This transfers the decision on whether the court can apply this institution to the Public Prosecutor’s Office, which raises constitutional doubts.
– assessed the Ombudsman.
According to the Commissioner for Human Rights, the following should be considered when amending this regulation: the mandatory recording of hearings involving so-called witnesses of the small crown, requiring the cooperation of the “witness of the small crown” in the judicial phase under penalty of losing this status, as well as “collecting by the courts for statistical purposes data on the participation of the ‘witness of the small crown’ in criminal proceedings”.
The Commissioner asks (…) to look into the recurring problems and consider initiating legislative action in this area. He also asks for a position
— Wiącek wrote in his letter addressed to the head of the Ministry of Justice, Adam Bodnar. As he said, he sent copies of the speech to the chairmen of the legislative committees of the Sejm and the Senate.
The issues of comprehensive changes to criminal law are currently being dealt with by the Criminal Law Codification Commission, which was reactivated at the Ministry of Justice this year.
tkwl/PAP
