Clarifying Rules Around the Small Crown Witness
The status and boundaries of the small crown witness deserve clear explanation. This matters especially when the testimony of such a person is the sole piece of evidence that could prevent wrongful convictions, a concern highlighted by the Commissioner for Human Rights.
Challenges surrounding the small crown witness system persist. The 2022 legislative initiatives have only intensified the need for a careful, comprehensive response. The aim is to close normative gaps and respond to practical questions about how this mechanism operates, as outlined in a formal letter from the Ombudsman to the Ministry of Justice and published on the Commissioner’s website.
The term petty key witness refers to a person who cooperates with law enforcement in exchange for lighter treatment. Under current Criminal Code provisions, the prosecutor can seek extraordinary sentence mitigation and may even suspend execution if the witness provides information about others involved and the circumstances of the offense, in return for cooperation.
At the prosecutor’s request, courts may grant extraordinary clemency or suspend the execution of a sentence for a perpetrator who has revealed significant new information about a crime that carries more than five years of imprisonment, regardless of the offender’s own explanations in their case. This option remains codified in the Criminal Code.
Constitutional questions
The Ombudsman points out that the current formulation traces back to autumn 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 setup raises questions about who makes decisions and how authority is distributed between courts and prosecutors.
The Commissioner for Human Rights notes that amending these rules should include several safeguards. These include mandatory recording of hearings involving the small crown witness, accountability by tying the witness’s cooperation to continued status, and the collection of data to monitor the participation of the small crown witness in criminal proceedings.
The Commissioner calls for a thorough review of recurring problems and potential legislative actions in this issue. He also requests a formal position from the relevant authorities, a point conveyed in the 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 managed by the Commission for the Codification of Criminal Law, which was reactivated this year at the Ministry of Justice.