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Victims with disabilities discriminated against in criminal procedure

M.P. claimed he had been raped by his therapist. The accused therapist has been acquitted, mainly because the courts decided that M.P.’s testimony was not credible due to the state of the man’s mental health. M.P. has made an application to the European Court of Human Rights arguing a violation of his right to a fair trial. The HFHR has prepared an amicus curiae opinion in the case.

“There are no measures in Polish law that would take into account special needs of people with disabilities and protect them against secondary victimisation. Persons with mental disabilities should receive additional legal guarantees such as the obligatory psychological consultation of questions that they are going to be asked during a hearing”, says Marcin Szwed, a lawyer working with the HFHR.

The Foundation’s opinion main purpose is to review the legal standards of domestic and international law regarding improved access to criminal proceedings for persons with an intellectual disability who are witnesses or victims in criminal cases. The HFHR emphasised that persons with intellectual disabilities were especially at risk of being heard in an improper way or were simply disregarded during criminal investigations or trials.

The HFHR underscored that at the time M.P.’s case adjudication, the Code of Criminal Procedure had offered no measures that would ensure that the victim could take part in the proceedings in the most effective way possible. Over the recent years, a number of positive changes have been made in this respect: among other things, regulations on disabled victims of sexual offences were made law and victims with disabilities were given the right to appoint a trusted person who is allowed to accompany them during procedural acts conducted as part of an investigation. The Helsinki Foundation also pointed to the fact that there were no provisions of civil, administrative, and court and administrative procedures that would provide persons with mental disabilities with better access to justice.

The HFHR’s opinion also presents a comparison of selected legal, administrative and practical measures that improve access of persons with intellectual disabilities to justice system used in Germany, the United Kingdom and Australia. “In Australia, for example, justice officials are given very detailed guidelines for handling cases of persons with intellectual disabilities; these guidelines also describe the required adjustments of courtroom facilities and conduct of individual criminal proceedings that involve such a person”, HFHR’s lawyer Michał Kopczyński explains.

The amicus curiae brief may be accessed here.

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