Can witnesses giving evidence in criminal proceedings count on protection from the accused?

This testimony, depending on the event observed and the knowledge possessed by the witness, may be unfavourable to the accused. An example of this could be a situation where a person was a direct witness to a robbery or murder. It is also worth bearing in mind that during the course of court proceedings, situations may arise in which a witness is in close proximity to a person who is about to be, or has already been, incriminated by his or her testimony while waiting for the trial to be called, during or after the trial.

The above leads, therefore, to the question: can such a person, who is obliged to tell the honest truth and not to conceal what is known to him or her , count on being able to give evidence unhindered, ensuring freedom of expression and any assistance for fear of being threatened by the accused?

The answer, fortunately, is yes. The support and measures of assistance that can be provided to a witness are possible both during ongoing legal proceedings and before and after their commencement. The legislator has included several institutions in the wording of the Code of Criminal Procedure that aim to provide due protection to persons called to testify as witnesses.

The first of these, which should be noted, is the possibility of questioning a witness in the absence of the accused. As a general rule, the accused has the right to be present during all evidentiary proceedings. However, in exceptional circumstances, where there is a concern that the presence of the accused person could have an embarrassing effect on the testimony of the witness, the presiding judge may order the accused person to leave the courtroom for the duration of the examination of the person concerned. It should be noted here that the examination of a witness may also be carried out by means of technical devices enabling this to be done at a distance, with simultaneous direct transmission of images and sound.

The personal data of a witness who is to give evidence may also be withheld in the course of the proceedings. If, in the realities of a specific state of facts, there is a justified fear of a threat to the life of a witness or a person close to them, as well as their health, freedom or property of significant size, the court – and in preparatory proceedings the public prosecutor – may issue a decision on keeping the circumstances which make it possible to disclose the identity of a witness, including personal data, secret, if they are not significant for the decision to be made in the case. It should be pointed out here that, in such a case, the proceedings in this respect shall take place without the participation of the parties, and shall also be covered by secrecy as classified information with the classification secret or top secret.

In addition, attention should be drawn to the special rules which apply in the examination of a witness who is a minor.

A person who is under 15 years of age on the date of the hearing in cases of offences committed with the use of violence or unlawful threats or against sexual freedom and morality and against the family and guardianship shall be heard as a witness only if his/her testimony may be of significant importance for the outcome of the case. Importantly, the interview is also conducted with the participation of an expert psychologist, with the prosecutor, defence counsel and the victim’s attorney having the right to take part in the interview. In the course of the evidentiary proceedings before the court, the video and audio recording is played back and the record of the interview conducted is read out.

It should also be highlighted that in a situation where: the witness is at least 15 years of age on the date of the interview, there is a reasonable fear that the direct presence of the accused at the interview could have an embarrassing effect on the testimony given or could have a negative impact on his/her mental state, and the case concerns the offences indicated in the above paragraph – such an interview should be carried out using technical devices allowing this activity to be carried out at a distance with simultaneous direct transmission of video and audio.

It should also be pointed out that a special mode of protection for witnesses and those closest to them is provided for in the Law of 28 November 2014 on Protection and Assistance to the Victim and Witness. The protection measures provided for in the above-mentioned Act can be implemented both during ongoing criminal proceedings, before they are initiated and after they are concluded, in a situation where there is a threat to life or health.

These measures include:

• protection provided during a trial activity – consisting of the presence of police officers in the vicinity of the witness during a trial activity with his/her participation, as well as on the way to the place where the trial is taking place and on the way back;
• personal protection – is provided in the case of a high degree of danger to the life or health of a witness in connection with ongoing criminal proceedings, in a situation,
  in which: there is a need for long-term protection, and the criminal proceedings in progress relate to cases whose trial at first instance falls within the jurisdiction of the district court, i.e. in cases of crimes (e.g. murder, human trafficking, robbery
  with a dangerous instrument), and in the case of certain offences
  (e.g. a fight resulting in death, fraud or money laundering).

Personal protection may consist of:

1. the temporary or permanent presence of police officers in the vicinity of the witness;
2. the temporary observation of the witness and their surroundings;
3. indicating safe places for the witness to be, as well as the time
   and safe manner of movement;
4. specifying the extent, conditions and manner in which the witness may contact other persons.

• Relocation assistance – can be provided in cases of high risk to the life or health of a witness where there is a need for long-term protection and other measures may be insufficient. This assistance consists of taking organisational measures to enable the witness to stay in a place other than their current one by:

1. providing temporary accommodation, ensuring that basic living needs are met;
2. assistance in renting accommodation;
3. help with moving house or settling in;
4. assistance in dealing with important life issues related to relocation.

It should be highlighted here that in assessing the degree of danger to the life or health of a witness or those closest to him/her, their characteristics
and personal conditions, their relationship with the perpetrator, the nature, manner and circumstances of the act committed and the motivation of the perpetrator are taken into account in each case.

Notwithstanding the above, a witness who has been assisted to relocate, who does not have a source of income or cannot work due to risk to life or health, may be given financial assistance to:

1. meeting basic living needs;
2. covering all or part of the costs of temporary accommodation or rental accommodation;
3. covering the costs of obtaining health care services.

It is worth remembering that, in the event of a threat to the mental health of the witness or those closest to the witness, it is possible to obtain psychological assistance provided by entities that have received a grant for this purpose from the Fund for Victims’ Aid and Post-Penitentiary Aid or other entities providing psychological assistance.

As a final point, it is also worth noting that a witness may appoint a proxy in the form of an advocate or a legal adviser and appear with him or her on the appointed date of hearing (both during pre-trial proceedings before the prosecution authorities and during ongoing court proceedings). The power of attorney may be granted in writing or verbally into the minutes. The appointment of a proxy in such a case does not entail the obligation to pay stamp duty.

The attorney’s primary task in this case will be to supervise the compliance of the hearing with the applicable regulations, inter alia, by ensuring that the questions put to the witness are clear and understandable, and that the answers provided are reflected in the written record of the hearing. It is worth pointing out here that, in addition to the investigator, the attorney also has the possibility to ask questions to the witness.

It should be borne in mind, however, that the court and, in pre-trial proceedings, the prosecutor, may refuse to allow the attorney to participate in the examination of a witness – if it considers that the defence of his or her interests does not require this. The notion of interest in pending proceedings is vague and has no clear definition. Each case should therefore be considered on its own merits, and a refusal to allow a witness’s representative to participate in a case while the pre-trial proceedings are ongoing may be challenged (unlike a refusal at trial).