CAUTION !!! automatic translation from Polish
- New rules for interviewing witnesses with mental and developmental disorders
ATTENTION! Automatic translation from Polish
Articles 185e and 185f of the Code of Criminal Procedure, added by the Act of January 13, 2023 (Journal of Laws of 2023, item 289, as amended), effective February 15, 2024, introduce special rules for interviewing witnesses with mental, developmental, or communication disabilities.
According to Article 185e of the Code of Criminal Procedure, such a witness is interviewed only if their testimony is significant to the case. As a rule, this should be done only once to reduce the risk of deterioration of the witness’s mental state. The interview takes place before the court, in the presence of an expert psychologist, within 14 days of filing the relevant request. Interestingly, the expert psychologist participating in the interview should be of the same gender as the witness (unless this will hinder the proceedings). The entire course of the interview must be recorded in the form of video and audio recordings. The new regulations also provide for the possibility of using augmentative or alternative communication methods if the patient’s health condition so requires.
Article 185f of the Code of Criminal Procedure specifies the conditions and location for such interviews. They should be conducted in appropriately prepared, secure rooms, and in exceptional circumstances, also outside the courthouse.
The Minister of Justice is obligated to issue a regulation specifying detailed requirements for the equipment of these rooms and templates for information provided to interviewed persons. The implementing regulation has already been issued and entered into force on January 21, 2025 (Regulation of the Minister of Justice of January 13, 2025, on the specification of templates for information on the course, method, and conditions of interviewing for persons interviewed pursuant to Articles 185a-185c of the Code of Criminal Procedure and Article 185e of the Code of Criminal Procedure; Journal of Laws, item 59).
It is worth noting that, pursuant to Article Pursuant to Article 52a of the Code of Criminal Procedure, the authority conducting criminal proceedings, intending to question a witness under Article 185e-f of the Code of Criminal Procedure, shall determine the characteristics and personal circumstances of the injured party, as well as the nature and extent of the negative consequences of the crime committed against them, taking into account the nature of the crime and the circumstances of its commission, by preparing an individual assessment questionnaire for the injured party (in accordance with the template developed in the regulation of the Minister of Justice issued pursuant to Article 52a § 6 of the Code of Criminal Procedure), no later than before the commencement of the proceedings. As a rule, if possible and if it does not delay the proceedings, the authority is obligated to obtain a statement from the person being questioned regarding whether they wish to apply the measures provided for in Article 185f. 185e of the Code of Criminal Procedure and the corresponding amendment of the relevant provisions relating to this activity are exhaustively provided in the justification of the Act of 13 January 2023 amending the Act – Code of Civil Procedure and certain other acts, where it is indicated: „The introduced regulation will impose on the procedural authority the obligation to thoroughly assess the situation of the witness, using the tool provided for in the amended Art. 52a of the Code of Criminal Procedure. If it is believed that the hearing should be conducted in the manner specified in Art. 185e, the procedural authority will have to verify these circumstances and decide on the manner of conducting further activities based, for example, on a certificate of the degree of disability, another document concerning the state of health, or finally an expert opinion. Based on these sources, it will assess whether the witness (…) suffers from mental or developmental disorders, disturbances in the ability to perceive or reproduce perceptions, and there is a justified fear that hearing in conditions other than those indicated in this provision could negatively affect his mental state or would be significantly more difficult. Therefore, it will assess whether the witness suffers from Features that justify and require protection during questioning. Without a doubt, a disability certificate, other health documentation, and expert opinions will constitute evidence regarding the witness’s condition. The juxtaposition of this demonstrated condition with the requirement to protect the overriding good of life and health will, in turn, be the basis for restricting the right to direct participation in the proceedings.”
This change in criminal procedure should be viewed positively. It not only introduces necessary solutions to improve the practical functioning of the justice system, but also provides individuals with various disabilities with appropriate conditions to participate in criminal proceedings. This makes the justice system more user-friendly and accessible to all.
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