Insufficient protection of witnesses and crime victims – HFHR intervenes

The HFHR has asked the Minister of Justice to take legislative action to address the unconstitutionality of certain provisions of the Act on protecting and assisting crime victims and witnesses.

The HFHR has underscored that the Act does not ensure appropriate protection to witnesses or victims of crimes denying them the right to effectively appeal to a court against a refusal of protection or assistance, for example financial aid. Instead, a witness or a victim may only submit an application for re-examination of the case to the same body that previously issued an unfavourable decision. Moreover, the application can be disregarded if no new facts have emerged in the case. The same procedure is applied to instructions on the revocation of protective measures made by police commissioners. “This is completely different from the provisions of the State Witness Act, which allow a state witness to file a complaint against the revocation of protection with a superior prosecutor”, says Marcin Wolny, a lawyer working with the HFHR. “This means that the state witnesses, who most frequently are repentant criminals, have more rights than aggrieved parties and ordinary witnesses”, he adds.

The problem with the former Act is that the measures available to persons in police protective custody. Such persons cannot change their identity or undergo plastic surgery, which are the options available to state witnesses. Moreover, financial support provided for such persons is discretionary and depends solely on the goodwill of the police commissioner examining the case. “Apart from this, if victims or witnesses disagree with the way they are protected, they are not entitled to any legal remedy in this respect”, Marcin Wolny adds.

The impact of these problems is serious against the background of individual cases. The best example of this problem can be the case of the Kowalski* family consisting of seven persons. In their case, the HFHR noted problems concerning protection granted to the family. Family members observed that a company for which they were supposed to provide advisory services was most likely laundering money. When the Kowalski family tried to report a suspected offence, they began receiving threats and their house was set on fire. The police decided to move the family to a safe house in another city. In consequence, the family has been living in isolation for eight months, during which they were forbidden to work, go to school or contact the outside world. The police decided to repeal the protective measures, most likely in the aftermath of their complaints. The Kowalski family did not have any legal remedy against the decision. The case has been described in detail in the article  “At the mercy of the police” published in the Duży Format weekly magazine.

Intervening in the case of the Kowalski family the HFHR asked the Prosecutor General, Minister of the Interior and Administration and the Chief Commissioner of the Police to take actions that would provide protection to the family. So far we received reply only from the Chief Commissioner of the Police. The Chief Commissioner pointed to the fact that the arguments raised by the HFHR have already been the subject of a grievance procedure and that the Kowalski family has been informed about its results.

* – surname has been changed