In the course of a criminal trial, it is not uncommon for a situation to be sought from doctors on the suspect’s physical and mental health. The means that can be used for this purpose are various, from obtaining information from the patient’s treatment record, through seeking expert opinions, to the most invasive measure in the suspect’s rights and freedoms, in the form of an examination of the suspect combined with observation in a closed facility for a specified period. Due to this interference, the application of this measure depends on the fulfillment of several conditions, some of which refer to the provisions on the application of pre-trial detention.
- Experts must report the need. In other words, there must be a circumstance as a result of which they are unable, in the course of ordinary activities, to determine the mental health of the suspect.
- It can only be used when the evidence gathered indicates a high probability that the accused has committed the offence. As stated by the Supreme Court in the decision of September 22, 2021 (file reference number: I DSK 3/21, LEX No. 3359053): „The observation referred to in Art. 203 § 1 CCP may be adjudicated in the event of a high probability – based on the circumstances of the case at a given moment of the proceedings, including the evidence already collected – that the defendant is the perpetrator of the act with which he is accused and which meets the criteria of a crime. The purpose of the opinion to be issued is therefore to assess the sanity of the accused.”
- With reference to art. 249 § 3 and § 5 of the Code of Criminal Procedure, there is an obligation to interrogate the suspect before sending him for observation, if possible, as well as to notify the prosecutor and defense counsel, if the suspect so requests. Moreover, if the suspect did not have a defense counsel in the previous proceedings, a public defender is appointed at his request.
- The duration of observation is 4 weeks, however, it may be extended for a total period not exceeding 8 weeks. Nevertheless, the Supreme Court, in its decision of November 19, 2014 (file reference: V KK 259/14, LEX No. 1621622), allowed the possibility of using evidence from observations exceeding the above-mentioned period: „The obvious fact of exceeding the maximum period of observation does not justify (.. .) accepting the impossibility of using an opinion drawn up after such observation in the trial.” . Moreover, in such a situation, Art. 156 § 5a, i.e. the suspect and the defender „shall be immediately made available to the case files in the part containing the content of the evidence attached to the application”. This is another appeal to ensure that the suspect’s rights are protected.
- By referring to art. article 259 § 2, art. 203 of the Code of Criminal Procedure does not apply when, based on the circumstances of the case, it can be expected that the court will order the defendant to be sentenced to imprisonment with conditional suspension of its execution or a milder penalty, or that the observation period will exceed the expected length of imprisonment without conditional suspension. This provision does not apply when the suspect himself requests to be observed
