Will rape offence be prosecuted ex officio?

The Sejm Subcommittee on the civil law reform is working to change the mode of prosecuting the offence of rape. Currently, under article 205 of the Criminal Code, the offence is prosecuted on the victim’s motion. The proposed amendments are gearing towards the mode of an ex officio indictment. The HFHR has presented an opinion in the issue, focusing primarily on these of the proposals made by deputies (Sejm paper no. 998) which stipulate that the prosecution on the motion should be partially revoked.

“We highlighted the lack of consistency in differentiating between situations where the offence of rape is prosecuted on the motion and the instances where it is prosecuted ex officio”, says Barbara Grabowska, HFHR lawyer.

In light of the legislative proposals the distinction between these two modes of prosecution will be crucial for awarding to the victim certain procedural rights, in particular the right to refuse to testify. Article 182 (2a) of the Code of Criminal Procedure, introduced in the proposed amendment, provides that the said right will be exercisable by the victims only in if the criminal case is brought ex officio.

“We also referred to laws relating to rape prosecution in other European countries. In majority of them, including Austria, Germany, France, Albania or Switzerland, this offence is prosecuted ex officio”, says Ms Grabowska.

In Finland, for instance, the ex officio prosecution of rape is carried out as a standard procedure, but the victims may, under certain circumstances, request the investigation to be discontinued. In Germany, on the other hand, where the offence is prosecuted ex officio with no exceptions, the victim doesn’t have any additional rights, such as the right to refuse to testify.

Last Friday, 22 March 2013, the Subcommittee decided to entirely abolish prosecution of rape upon the victim’s motion. At the same time, the deputies abandoned plans to incorporate the right to refuse to testify in the draft law.