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2.2.3 Legal Aid and Compensation for Victims
Legal and Financial Support Available to Victims
According to the Polish Criminal Code, the hate crime victim can make claims for monetary reparations if they have suffered economic and non-economic damages (pain, suffering, medical expenses etc.). In the case of a conviction for an incident causing death or serious detriment to health, or offenses against property and similar offenses, the court, upon a motion from the injured person, shall pass a sentence obligating the redress of the damage caused, in whole or in part (Art. 46). Compensatory damages can also be imposed on the perpetrator to benefit an institution, association, foundation or social organization. The Minister of Justice keeps a list of institutions or social organizations that are eligible to receive funds from crime compensation and whose primary goal is to provide services directly related to the protection of the given community’s general health. Any interested entity can request to be added to the list. The list is published at least once a year by the Minister of Justice (Art. 49a Sect. 2).
According to the Polish Civil Code, it is possible to raise a civil complaint against a person who violated an individual’s personal welfare (e.g. freedom, dignity etc.). For a long time, this was the principle means through which victims of discrimination could achieve financial compensation. (8) Secondly, the crime victim may also claim monetary compensation or indemnification for specified purposes with the help of the Commissioner for Civil Rights Protections. The compensatory damages can be adjudicated in the amount of up to PLN 100 000 (Art. 48). Nevertheless, the Helsinki Foundation for Human Rights (Helsińska Fundacja Praw Człowieka) reported in 2003 that the current legislative framework in Poland does not provide sufficient protection for the right to legal aid. (9)
Polish Crime Victim Charter
The Polish Crime Victim Charter was drafted in 1999 with the collaboration of the Ministry of Justice, other governmental agencies, and non-government organizations and institutions. The Polish Crime Victim Charter was drafted and signed in 1999
by the Ministry of Justice in collaboration with other governmental agencies, non-government organizations and institutions, as well as individuals who deal with hate crime victims. It is a compilation of previously existing regulations, and it has little legal significance on its own. Its importance is symbolic rather than legal. The idea
was summarized by Hanna Suchocka, the Minister of Justice at that time:
»The charter is a set of legally-binding laws that apply to crime victims, as well as instructions regarding for what and against whom the crime victims can make a claim. The Charter is intended to offer support to each victimized person in a situation where his/her rights are not respected, and to remind police officers, prosecutors and judges that they should not overlook the particular situation of the victim in their pursuit of collecting evidence and determining and judging the actual offenders.«10
The Charter is general in nature and as such, it does not name hate crimes specifically. However, by emphasizing victim’s perspective, rights and dignity, it may constitute not only a crucial point of reference for victims themselves and organizations/ institutions representing victims of hate crimes, but also as an instrument of prevention against denial of proper assistance by law enforcement agencies and officers. In the context of victim blaming or the secondary victimization tactic of justifying ideologically motivated crimes (e.g. as in the cases of anti-Roma crimes reported by the European Roma Rights Center), the following passage in Section II.5 of the Polish Crime Victim Charter might be especially useful: »One cannot justify a crime with tradition, culture, [or] stereotypes minimizing the perpetrator’s guilt.«
The National Program for Crime Victims
In July 2004 the Commissioner for Civil Rights Protection (Ombudsman) submitted the »National Program for Crime Victims« to the Minister of Justice.11 It was drafted with the help of NGOs that stressed the need for better information on services available to crime victims and improved practical support by government institutions. Information about contact points and different forms of support offered to crime victims was already collected in 2003 from the voivodships (the provinces in Poland); it was updated in 2005 and subsequently published on the ombudsman‘s website. The information was supplemented with data from certain victim support and legal aid organizations, including government centers providing support to the crime victims (Local Support Centers).12 Nigdy Więcej participated in the consultation process and provided a draft for Chapter XII of the program, titled »Victims of Crimes Related to Difference—Victims of Chauvinist Crimes.« Nigdy Więcej’s strategic objectives and demands included:
• special support for victims of hate crimes
• access to free legal aid
• legal aid and representation for victims who appear in legal proceeding as parties in a trial
• reimbursement of the victims’ expenses (or of witnesses or parties) incurred in connection with their participation in the penal proceedings
• the right to protection
• personal and privacy protection for the victims, their families and relatives
• indemnification from the perpetrator; immediate return of victim’s property
• protection of non-Polish nationals: support and counseling
• international cooperation to help hate crime victims
• support for NGOs providing assistance to crime victims
• training of the individuals participating in legal and other proceedings or otherwise maintaining contact with the victims
• measures to counteract re-victimization and pressures on the victim.
The specific program objectives were the following: social campaigns and lobbying for the interests of the crime victims, crime prevention and an in-depth analysis of chauvinism in Poland. The following measures were determined to be the first priorities: social campaigns, »court watch« (legal monitoring), the establishment of a court information system, a new police work catalogue (to be developed) and improved cooperation between police departments and NGOs. According to the ombudsman’s website »the National Program for Crime Victims is one of the most important legislative measures undertaken by the Ministry of Justice in 2008.« However, Nigdy Więcej’s main demands listed above were not fulfilled. Moreover, the National Program initiated in 2008 is hardly comparable to the draft, and it remains unclear which organizations and institutions should be responsible for its implementation. Nevertheless, this program has laid the foundation for a general framework of victim assistance in Poland, which is a step in the right direction.
8. Filipek, Pawel; Pamula, Maria 2005. Poland Executive Summary Country Report, European Commission, Brussels, p. 4.
9. Bojarski, Lukasz 2003. Access to Legal Aid in Poland, p. 8.
10. Ministry of Justice 1999. Polska karta praw ofiary, Warsaw.
11. Krajowy Program na Rzecz Ofiar Przestpstw na lata 2009-2013, Warsaw 2004.
12. Ibid.
(OPP)
