PRAWO DO OBRONY A DOWÓD Z ZEZNAŃ ŚWIADKA INCOGNITO W POLSKIM PROCESIE KARNYM
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Date
2003
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Wydział Prawa i Administracji UAM
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THE RIGHT TO DEFENCE AND EVIDENCE BY TESTIMONY OF AN ANONYMOUS WITNESS
Abstract
The author describes the limits of the right to defence in the context of evidence by testimony
of an anonymous witness. In practice, the introduction of the evidence by testimony of
an anonymous witness to the Polish criminal system means that the legislator decides to limit
the procedural rights of the defendant. The author notices the need to balance the defendant’s
interest and right to defence against the witness’s right to personal security and the
resulting prohibition of such execution of the right to defence that would lead to the violation
of the fair interest of the other trial participants.
Having analyzed the jurisprudence of the European Court of Human Rights the author
comes to the conclusion that also in the light of the Court’s verdicts the introduction of an
anonymous witness to the criminal procedure does not mean a breach of the right to defence.
The author analyses some particular procedural rights of the defendant related to the evidence
by testimony of an anonymous witness and shows to what degree these rights are modified
in that situation.
The author claims that whenever the threat to the witness’s life, freedom or health is more
real and probable, greater limitations to the right to defence shall be accepted. Nevertheless,
the procedure of examination of evidence should meet the standards following from procedural
rules. The right to defence will be exercised in a way that does not breach the fairness
of the trial if at least the following conditions are met: defendant and/or his counsel shall participate
in the hearing of anonymous witness during the trial; defendant and/or his counsel
shall be allowed to formulate questions to such a witness; they shall have the right to receive
answers to the questions concerning the subject matter of the testimony, not the witness himself;
questions not answered by the witness shall be included in the protocol of the trial and
in its authenticated copy.
The elementary principle to be observed is that, in every single situation, the parties have
to compensate for all acceptable and admissible deviations from procedural rules and for
the right to defence in particular. In such a situation, the compensation should broaden the rights
of the defence and enable the exercise of those rights in practice.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 65, 2003, z. 4, s. 27-42
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ISBN
ISSN
0035-9629