The status and rules governing the use of the so-called small crown witness must be clarified. This matters especially when the testimony of such a person is the sole incriminating evidence that could otherwise lead to wrongful convictions, according to the Commissioner for Human Rights.

The challenges surrounding the institution of the small crown witness have not diminished. In fact, in light of the 2022 legislative initiatives the need for a careful, comprehensive response has grown. This response should address existing normative gaps and address growing questions about how this mechanism is applied in practice, in the view of the Ombudsman as expressed to the Ministry of Justice in a letter published on the Commissioner’s website.

The term petty key witness describes an offender who cooperates with law enforcement in exchange for lighter treatment. Under current Criminal Code provisions, the prosecutor can request extraordinary sentence mitigation and may even suspend execution if the offender provides information about others involved and the circumstances of the crime, in return for cooperation.

At the request of the public prosecutor, courts may grant extraordinary clemency or suspend execution for a perpetrator who has disclosed to authorities significant new information about a crime carrying more than five years of imprisonment, regardless of the offender’s explanation in their case. This option remains codified in the Criminal Code.

Constitutional doubts

The Ombudsman highlighted that the present formulation dates back to the autumn of 2023 following the 2022 amendment. The court now applies extraordinary clemency to such individuals only at the prosecutor’s request and may suspend its implementation. This arrangement raises questions about the proper distribution of decision making between courts and prosecutors.

The Commissioner for Human Rights notes that amending these rules should consider several safeguards. These include mandatory recording of hearings involving the small crown witness, ensuring accountability by linking the witness’s cooperation to continued status, and the collection of data for statistics on the participation of the small crown witness in criminal proceedings.

The Commissioner calls for a thorough analysis of recurring problems and for potential legislative actions in this area. He also asks for a formal position from the relevant authorities, a point he conveyed in his letter to the head of the Ministry of Justice and in copies sent to the chairs of the legislative committees of the Sejm and the Senate.

Current discussions on comprehensive changes to criminal law are being handled by the Commission for the Codification of Criminal Law, which was reactivated this year at the Ministry of Justice.

tkwl/PAP

Source: wPolityce