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2.2.2 Options for Victim Support within the Legal System
The following account briefly describes provisions in the Polish system with respect to the general rights of crime victims in legal proceedings. Polish law also provides social organizations with the opportunity to actively participate in administrative settlements and lawsuits. However, in Poland there are currently no lawyers or NGOs specialized in representing victims of racial discrimination or right-wing hate crimes in court or administrative matters. NGOs with a broader mandate, such as human/civil rights or humanitarian aid, usually offer legal aid programs that provide assistance to victims discriminated against on the basis of their national or ethnic group. Overall, their experiences with assisting victims of right-wing or racist violence in bringing their cases to court are very limited. Many victims are unwilling to press charges against perpetrators, which can be explained in part by a general mistrust in the effectiveness of the existing legislation and law enforcement system.
Many are also afraid of secondary victimization. (1) Furthermore, the Polish legal system is known for the enormous length and clumsiness of judicial proceedings that often hinders human rights protection. (2) There also seems to be a shortage of lawyers and an unmet need for legal services, including legal aid. (3)
Subsidiar y Prosecution
The criminal law and criminal proceedings reform in 1997 significantly changed the status of the victim in criminal and preparatory proceedings. The victim’s status used to be limited to a witness. In the event of public prosecution, however, a victim may now also serve as a »subsidiary prosecutor« (Art. 53 of the Criminal Proceedings Code). For this purpose, a »private accusation« must be written and signed by a lawyer. This grants the victim a more active role in the course of the criminal proceedings (e.g. by allowing them to ask questions, helping the prosecutor conduct the legal proceedings). An essential element is also the victim’s right to fair and intelligible information on procedural guaranties. In accordance with Polish criminal law, a victim may claim damages in criminal proceedings—that is, they may institute an »adhesion claim.« (4) The investigating authority should advise the participants of their duties and rights in the proceedings.
Victim and Witness Protection
The law calls for the protection of the victim, their family and private life. The judicial and police agencies should treat a victim with special care and gravity. Polish jurisdiction has developed some guidelines for the police and judicial authorities that stipulate the proper treatment of victims. In practice, however, particularly in cases of hate crimes, both victims and witnesses frequently fear that their personal data will be disclosed to the perpetrators or their supporters. For this reason, the police and the public prosecutor have the duty to protect the personal safety of the victim. As a protective measure, a victim can motion to keep his or her personal data secret and testify as an incognito witness. In this matter, the Criminal Proceedings Code stipulates that if the suspicion is justified that the witness or a relative’s life, health, freedom or property is in considerable danger, the court or the prosecutor may issue an indictment to keep the threatened individual’s identity secret, providing these factors are not decisive for issuing the judgment in the case (Art. 184 Sect. 1). With a protected identity indictment, the proceedings continue without the participation of the parties and are subject to state secrecy. If the concern for possible violence or an unlawful threat against this individual is justified, the victim or witness may also withhold details about their place of residence from all parties except the state prosecutor or the court. To help protect their safety, the witness can then specify the address at which they want to receive the pleadings, whether it be a place of work or otherwise (Art. 191 Sect. 3). According to the Press Law Act (Ustawa Prawo prasowe) of 1984, publishing of the images and personal data of witnesses, victims and offenders is prohibited unless they expressed their consent for such publication (Art. 13 Sect. 2). (5) This especially applies to reporting on ongoing court cases.
Social Organizations in Court Proceedings
Community organizations may also participate in civil actions and criminal procedures in order to defend community or social interests within the statutory purposes of such an organization. (6) According to Article 90 Section 1 of the Criminal Proceedings Code, the participation of an organization’s representative has to be petitioned prior to the commencement of the judicial hearings. The court must admit a representative of a non-profit social organization if it finds that their participation in court proceedings is needed »to protect public interest or important individual interest falling within the statutory objectives of the organization, in particular the need to protect human rights and freedoms« (Art. 90 Sect. 3). The representative of a social organization who has been admitted to court proceedings may participate in the trial, make statements and submit motions in writing. This provision could be particularly useful for hate crime victim support organizations in the future, provided they have adequate resources to make appropriate use of it. (7)
1.According to one recent survey by Lambda Warsaw, 85 percent of those respondents who indicated they had been subject to homophobic violence did not report to the police. »Among the most frequently mentioned reasons for not informing the police about the experience of violence, were the following: I do not trust the police’s effectiveness in such cases; I was afraid that the police would not treat my case seriously; I feared verbal harassment and maliciousness from the police. concerning my sexual orientation, and I was afraid of the perpetrators’ revenge.« Abramowicz, Marta 2007 (ed.). Sytuacja społeczna osób biseksualnych i homoseksualnych w Polsce: Raport za lata 2005 i 2006, Warsaw, p. 15.
2. Council of Europe Commissioner for Human Rights 2007. Memorandum, p. 2.
3. Bojarski, Lukasz 2003. Access to Legal Aid in Poland: Monitoring Report, Helsinki Foundation for Human Rights, Warsaw, p. 10.
4. Banach, Joanna; Gwizdalska, Anna (n.d.). Victim Protection in Criminal Proceedings Legislation: A Pan-European Comparison, Country Report: Poland, Warsaw.
5. Dziennik Ustaw, 7 Feb 1984.
6. Mazur-Rafal, Monika 2007. Report on Measures to Combat Discrimination: Country Report: Poland, European Network of Legal Experts in the Non-Discrimination Field, Brussels, p. 46.
7. The Helsinki Foundation for Human Rights already made use of this provision and engaged in some discrimination cases both as amicus curiae and on behalf of the complainant in 2005 and 2006. Ibid., p. 47.
(OPP)
