REPLIES TO THE QUESTIONNAIRE ON PROTECTION OF WITNESSES AND PENTITI IN RELATION TO ACTS OF TERRORISM POLAND

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1 REPLIES TO THE QUESTIONNAIRE ON PROTECTION OF WITNESSES AND PENTITI IN RELATION TO ACTS OF TERRORISM POLAND a. General Information 1. Please describe the framework (legal provisions and established practice) governing the use of measures protecting witnesses and pentiti. The Polish Code of Criminal Procedure currently in force contains various provisions concerning protection of a witness identity: - Article 184 of the Code of Criminal Procedure provides possibilities to impose secrecy on the identity of a witness, - Article 191 item 3 of the Code of Criminal Procedure provides the possibility to reserve information concerning a witness s place of residence, exclusively for the prosecutor or the court. This may be applied to each witness, when a justified assumption of threat exists against the life, health, freedom or property of the witness or those close to the witness. The Crown Witness Act was adopted by the Parliament on 25 June It provides a possibility for perpetrators to act as witnesses in organised crime or in cases of conspiracy aimed at committing certain crimes, specified in the Act. The act provides a possibility to include such a witness in a special protection programme. 2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witnesses and pentiti to co-operate with justice. The concept of measures encouraging witnesses to co-operate with the administration of justice does not exist in Polish law. As far as crown witnesses are concerned, as a measure of this type we could consider the possibility of escaping criminal responsibility where, according to Article 7 of this Act, if a court issues a decision on the admissibility of evidence from the crown witness's testimony, the prosecutor prepares copies of the materials relating to the person indicated in the decision and excludes them for separate proceedings. Subsequently, such materials are suspended in relation to the crown witness. The suspension lasts until the proceedings against the remaining offenders reach a legally valid conclusion. In this way, the crown witness is not liable for punishment for crimes, in which he/she has participated and which he/she has disclosed as a suspect. After delivering a legally valid verdict in relation to the remaining offenders, a decision on the discontinuance of the legal proceeding against the crown witness is issued within 14 days from the day on which the verdict ending the penal proceedings becomes legally valid. In Polish criminal law, we can also find an institution of the so-called small crown witness. This relates to suspects, who decide to co-operate with the administration of justice, but the institution of crown witness cannot be applied to them since they have attempted or committed a murder or

2 2 participated in this type of crime, incited other persons to commit a forbidden act in order to direct criminal proceeding against that person or formed an organised group or criminal alliance, or perhaps managed such a group or alliance. Under Article 60.3 of the Polish Penal Code, the court uses an extraordinary mitigation of penalty with regard to such a person and even suspends its execution conditionally if the offender acting together with other people discloses to a body of justice administration information on the persons taking part in committing the crime and important circumstances of its perpetration. According to Section 4 of this Article, upon the prosecutor's request the court can apply extraordinary mitigation of penalty and even suspend its execution with regard to an offender who, besides making statements on his case, provides an investigating body with the information relating to a crime liable to a penalty of imprisonment in excess of 5 years and presents significant circumstances, unknown to the investigating body until now. 3. Can measures/benefits encouraging the co-operation of witnesses and pentiti be used in combination with protection measures (arrangements concerning trial proceedings, sentencing conditions, special penitentiary regimes, etc.)? If so, please specify and indicate under which conditions they are applied. The above-mentioned measures, relating to crown witnesses and the so-called small crown witnesses, can be applied together with other protection measures. The agreement between the administration of justice and a crown witness or a small crown witness permits the use of both measures at the same time. The conditions for conviction or impunity result from the binding regulations. The action connected with legal proceedings are arranged and conducted in specific circumstances, for example, during a trial it is obligatory to conduct the hearings in afternoon hours, in an empty and examined court building and after ensuring police protection. As far as possible there are also special conditions provided for staying in penal institutions, most frequently separate cells and selected penal institutions. 4. For which kind of crime and under which circumstances can witness and pentito protection be applied? Can the measures be extended to the relatives or other persons close to the witness/pentito? The Crown Witness Act is applicable in organised crime cases or in cases of conspiracy aimed at committing the following types of crime: assassination of the President of the Republic of Poland, murder, causing a catastrophy or a general danger, causing a direct threat of catastrophy or general danger, causing an epidemiological threat, illegal trade in radioactive substances, kidnapping of a person with the aim at forcing her/him to deal with prostitution abroad, trafficking in human beings, illegal trade in arms, robbery and extortion, money laundering, falsification of currency, damage to property, causing considerable losses, fiscal offences causing considerable losses, fiscal offences causing considerable decrease of dues to the State Treasury, illegal production and trafficking in narcotics and psychotropic substances, selected offences against the Excise Act, participation in an organised group or conspiracy aimed at committing crime. Application of this institution is explicitly excluded in cases of murderers and organisers or leaders of criminal groups. The witness protection measures can be extended to the relatives or other persons close to the crown witness. 5. What urgent measures (e.g. immediate relocation to a secret place) can be taken in order to protect witnesses and pentiti? The place where a crown witness and persons nearest to him/her stay can be changed immediately and a 24-hours physical protection can be provided.

3 3 6. Which institutions are involved in the protection of witnesses and pentiti and what is their role ( e.g. law enforcement agencies, special independent agencies, prosecutor s offices, judicial authorities, etc.)? How does co-operation between the relevant institutions work in practice? The protection of a crown witness is entrusted to the police; its role is limited to executing the decisions issued by a prosecutor with regard to the form of the witness protection and the extent of the financial aid granted. Co-operation between these two institutions works correctly through exchange of information, consultations and meetings. 7. Are there any specific provisions governing the protection of witnesses and pentiti in relation to acts of terrorism? If so, please specify. Are there any specialised counter-terrorism institutions? If so, what is their role in the protection of witnesses and pentiti in relation to acts of terrorism? There are no rules relating to the protection of witnesses in the cases of terrorism acts. 8. How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co-operate with justice guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards. In terms of principles, the applied methods of protecting crown witnesses guarantee that human rights and personal freedom are observed. Restrictions occur only in situations where a 24-hour physical protection is required due to a danger or due to the need for immediate relocation. b. Procedural measures 9. At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from procedural measures of protection? a) At the stage of the investigation: - at the time of the filing of the proposal to allow him/her to testify in the form of a crown witness, his/her testimonies will be made latent; - incognito witness see the reply to question 12; - the option exists of filing in the protocols, the address of employment instead of the home address (e.g. police officers). b) In the court: - the witness can request that he be questioned during the absence of the defendant in the courtroom; - exclusion of an open trial at the request of the witness (obligatory in the case of the crown witness). 10. Is there the possibility for witnesses and pentiti to obtain legal assistance at this (these) stages(s)? The Polish legal procedure does not foresee such a possibility. 11. Are there alternative methods of giving evidence which allow the protection of witnesses and pentiti from intimidation resulting from face to face confrontation with the accused? If yes, please specify (e.g. full or partial anonymity, videoconference, disguise, exclusion of the defendant from the courtroom when the

4 4 witness is giving evidence, exclusion of the media or the public from the trial, etc.) and indicate under which conditions these methods are used. In Polish law, there are alternative methods for collecting evidence, which allow the protecting of witnesses and crown witnesses regarding the fear associated with a confrontation: - the institution of witness incognito permits the concealing of the personal data of such persons, and the subsequent conducting of an investigation in a secret place. During a trial at bar, a witness incognito is heard in the presence of a judge, usually the judge from the bench. The testimony is heard by the parties present at the court, who can pose questions. In order to prevent identification during the testimony, the witness's voice is changed by technical means; - disguise with regard to witnesses incognito and persons nearest to a crown witness; - crown witness - exclusion of an open trial is obligatory. Parties to the proceeding participate in this hearing; - provisions of the code of penal proceedings, binding as of 1July 2003, introduced the possibility of interrogating a witness from a distance (video-conference). In practice, this does not function yet. 12. On which grounds and on the basis of which criteria can anonymity be granted? Is there the possibility to obtain legal assistance at this state? According to Article 184 of the Code of Penal Proceedings if there is a reasonable apprehension of danger to life, health, freedom or property of considerable value of the witness or a person nearest to the witness, it is the public prosecutor during preparatory proceeding or the court during court proceedings, who decides to keep secret the data which could disclose the witness's identity. In such a case, the personal data is known only to the prosecutor and the court and, in justified cases, to the police officer carrying out the criminal investigation. The deposition of the witness should be made available for the accused or his/her defence lawyer in a manner preventing the disclosure of the witness's identity. Technically, the copies of a witness's deposition are made omitting the personal data and signatures. Once a decision on keeping a witness's data secret is issued, such data constitutes a state secret. It is not possible to give a witness other help apart from the help in arranging the hearings. 13. Are pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti regarded as valid evidence? If yes, under which conditions? According to our procedure, the first testimony of a crown witness is the statements he makes as a suspect during the preliminary investigation. Only upon issuing a decision on the admissibility of evidence from the crown witness's testimony by a court, appropriate for hearing the case, does his/her role in the proceeding change. He/she becomes a witness, to whom the provisions of Articles of the Code of Penal Proceedings do not apply, i.e. he/she does not have the right to refuse a deposition referring to the suspension of proceedings and cannot avoid giving an answer. The deposition of a witness incognito established by a prosecutor has the same force of evidence as a testimony before the court. Statements of a crown witness are also considered as such evidence.

5 5 14. Is it possible, and if so, under which conditions, to use information provided by pentiti? How is their credibility assessed? The Polish law permits using the evidence provided by a crown witness and it is treated as any other evidence. The credibility of a witness and his/her testimony is checked by admitting other evidence during the preparatory proceeding. Those are open depositions of other witnesses, documents and objects as well as secured traces. Statements of suspects in the case, in which the crown witness was appointed, also play a significant role. 15. Which are the opportunities for the defence to exercise its rights, including the right of the accused to challenge the witness /pentito s credibility in criminal proceedings (including at the pre-trial stage) and the respect of the equality of arms principle? The restrictions in applying the principle of "equality of arms" are due to the very nature of the institution of crown witness and witness incognito, mainly in a preparatory proceeding, where in the case of witness incognito it is practically impossible to carry out a confrontation with such a person. According to Article of the Penal Code, the hearing of a witness with the participation of the accused or his/her defence lawyer can take place only and exclusively in circumstances that preclude the possibility of disclosing the witness's identity. In case of an accused, which, when making statements applies to testify as a crown witness, his/her statements are kept secret. They remain secret until the court issues a decision on the admissibility of the crown witness's testimony. Therefore, checking the circumstances, indicated by the crown witness gives the advantage to the plaintiff. If the court does not admit evidence from the crown witness's testimony, the minutes of the statements must be destroyed. c. Non-procedural measures 16. At which stage(s), and in which context, is it possible for witnesses and pentiti to benefit from a protection programme? Once the suspect applied for allowing him/her to give a deposition as a crown witness, he/she can already take advantage of the protection program. This requires the prosecutor to issue an appropriate decision and means an immediate change of residence, personal protection and financial aid. As soon as the court issues a decision on the crown witness, a prosecutor conducting the preparatory proceeding issued a decision on granting protection and financial aid on the basis of information held. The duration of the protection programme depends on the evaluation of the degree of endangerment. In the Polish procedure, the suspension of the protection programme is not possible - it can only by withdrawn. The withdrawal of the protection or aid can occur, in accordance with the cited ordinace, if the danger to the life or health of the protected person ceased, or if the protected person applies for the withdrawal of the granted aid and protection, in the case of purposeful violation of the principles or recommendations with regard to protection or persistent failure to fulfil the duties, in the event of taking up the suspended proceedings in relation to a crown witness, in the event of gross violation of the granted protection and aid conditions by the protected person. This relates to failure to observe legal order, suppressing material information significant for the protection, not complying with the recommendations of policemen providing the protection and using the protection and aid contradictory to its purpose. The issue of a decision on withdrawing the

6 6 protection and aid is within the competence of a prosecutor. The protected person and persons nearest to him/her can appeal against the decision. 17. Is there the possibility for witnesses and pentiti to obtain legal assistance at this (these) stage(s)? The Polish legal procedure does not foresee such a possibility. 18. What is the procedure for admittance to a protection programme? Please specify, in particular, who takes the initiative, the criteria for admittance, the assessment of the relevance of a testimony and how admittance to the programme is formalised. The condition for application of protective measures and support specified by the Act is a written statement, made by an adult person, making it obligatory to follow the rules and recommendations concerning implementing protective measures, and fulfilling all obligations specified by the Act, and following all decisions issued on the basis of the Act when protected or assisted in changing the place of residence or when ID documents allowing the use of a different identity issued. Application of personal protection and support is decided upon by a prosecutor on request of the crown witness or an individual close to him/her. A prosecutor may also, on his own initiative take a decision in that extent, with the consent of those persons. The witness protection programme in Poland must be based on the voluntary participation and consent of the witness. 19. Please indicate the measures that can be adopted for the protection of witnesses and pentiti (e.g., surveillance of the residence, physical protection, protection of personal records, relocation, change of identity, subsidies, assistance in job search, relocation of a detainee to another prison or to special units). The protection and assistance measures used in Poland are the following: - personal protection (physical) - that takes place only in emergency situations because of the fact, that it requires engaging a lot of manpower and is possible only for short period of time. - change of the crown witness s place of residence this method is more efficient and safer than the previous one. But at the same time it is more expensive, especially when the change of place is necessary several times. - assisting the crown witness to find a new job or to increase his/her qualifications by providing a training course. - providing the crown witness with other personal data and sometimes (in justified situations) with new identity documents, including documents allowing the crossing of state borders. - economic and medical assistance used in cases of lack of possibilities to earn money by the crown witness and his/her family. 20. What can the duration of a protection programme be? Which are the procedures for assessing the degree of danger for the witnesses/ pentiti and their compliance with the obligations of the programme? Is it possible to challenge a decision of suspension, revocation or termination of a protection programme? The duration of protection measures is dependent on the evaluation of the threat situation.

7 7 d. International co-operation 21.Which measures ( e.g., use of modern telecommunications means, assistance in relocating protected witnesses, exchange of information between witness protection authorities) have been adopted in the context of mutual legal assistance in order to facilitate international co-operation? How are the financial implications of international co-operation activities dealt with? The Polish law provides for adopting the protection programme from abroad and relocating the protected persons outside the Polish frontiers. In the event of transferring a protection programme to Polish territory, the country effecting such a transfer shall cover the costs of transport to the border, costs of renting and maintaining accommodation as well as the costs of supporting the witness and medical care. Costs of relocations on Polish territory and costs of protection forces are covered by Poland. From amongst measures facilitating the co-operation, the possibility of using videoconference facilities was used. 22. Has your country entered international (bilateral or multilateral) agreements on the protection of witnesses and pentiti? If so, please indicate what kind of provisions they include. The exchange of witness protection programmes takes place under the international agreements on overcoming organised crime. 23. How can international co-operation in the field of the protection of witnesses and pentiti be improved? International co-operation could be improved by: - unifying legal regulations; - organising a contact point at the institution effecting protection of witnesses in each country. e. Statistics 24. How many people currently benefit from witness or pentito protection measures/programmes, and for how long? How many of them are foreign people? If the measures/programmes can be extended to relatives and other close persons, please indicate (and, if possible, specify the relationship with the witness/pentito) how many people are included in this category. Please also provide figures on the different kinds of measures (procedural and non-procedural) adopted, and on the number of cases involving international co-operation. Presently we are dealing with: - 56 cases protected people (53 crown witnesses and 80 family members) - 2 programmes we have exchanged abroad and 1 we have accepted.

8 8 f. Proposals and comments 25. Please provide any comments/proposals concerning the implementation of the terms of reference of the PC-PW and, in particular, instruments to be adopted to strengthen the protection of witnesses and pentiti. In order to strengthen the institution of witness protection, using the Polish example, the following is recommended: - to apply this institution also to victims and eye witnesses. This would permit taking fuller advantage of this institution and giving victims and eye witnesses a right to protection and aid equal to the right of a crown witness; - to introduce it on a permanent basis and not temporarily as is the case in Poland - this would increase the effectiveness of its application and would eliminate the mass criticism of this institution by the lawyers' circles; - the crown witness status to be granted by a commission - this would help to avoid further disappointments on the part of a crown witness and the administration of justice; - to create special teams in penal institutions, allowing protection of witnesses sentenced to imprisonment.

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