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Constitutional right to defence vs. duty of self-incrimination

Jolanta Budzowska27 December 2021Komentarze (1)

In court proceedings, witness statements are the primary evidence. They must therefore be reliable and accurate. Because of the importance of this testimony, it is understandable that the laws of various countries impose an obligation on witnesses to tell the truth and a prohibition against concealing the truth under penalty of law. Polish criminal law punishes violations of this obligation with imprisonment of up to 8 years (Criminal Code art. 223 § 1).

However, a problem can arise when a witness, such as a doctor, testifying in a medical malpractice case, fears that telling the truth, revealing it, will lead to charges against him.

Obviously, according to Article 183 § 1 of the Criminal Procedure Code, a witness may decline to answer a question if, in his opinion, answering it could expose him or a person close to him to criminal liability.

But what if a witness, fearing that he will be charged, instead of refusing to answer a question, lies or suppresses the truth?

As of 2016, this issue is regulated by Article 223 § 1 a of the Penal Code, according to which ‘If the perpetrator of the act referred to in § 1 testifies falsely or secrets the truth out of fear of criminal liability threatening himself or his immediate family member, he is subject to the penalty of deprivation of liberty for between 3 months and 5 years.’.  It can be said that this provision imposed a duty on witnesses to self-incriminate.

In addition, such a provision may lead to the temptation to call potential suspects as witnesses first because they face criminal liability under this provision for making false statements.

This regulation has been controversial from the beginning due to the fact that it is impossible to reconcile it with the constitutional right to defence contained in Article 42(2) of the Constitution of the Republic of Poland and stipulating that ‘Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings (…)’.

The Ombudsman, who also recognised the problem of incompatibility of Article 233 § 1a of the Criminal Code with the constitutional right to defence, went even further and alleged that this provision is incompatible with international and European law, namely with Article 14 § 3 (g) of the International Covenant on Civil and Political Rights and with Article 6 § 1 of the Convention on Human Rights and Fundamental Freedoms (Position of the Ombudsman for the Constitutional Court in the case initiated by a legal question from the District Court in T. ref. no. P 4/20).

Moreover, the regulation introduced in 2016 is contrary to the thesis contained in the resolution of the entire Criminal Chamber of the Supreme Court of 20 September 2007, I KZP 26/07, which reads: “A person does not commit the offence of false testimony (Article 233 § 1 of the Criminal Code) who intentionally gives false testimony concerning circumstances relevant to the exercise of his right of defence (Article 6 of the Criminal Procedure Code)”, which was followed by other courts in making their judgements.

The problem was recently addressed by the Supreme Court, which issued a Resolution of November 8, 2021, composed of 7 judges, giving effect to the legal principle, which reads:

“A witness who gives false testimony out of fear of facing criminal liability does not commit an offence under Article 233 § 1a of the Penal Code if, in exercising his right of defence, he gives false testimony or conceals the truth without at the same time exhausting with his conduct the elements of a prohibited act specified in another provision of the Act.”

Thus, the Supreme Court has taken the position that a witness who fears the threat of criminal liability has the right to exercise his right of defence and lie when giving testimony. This principle is binding only for all compositions of the Supreme Court, although it is not without influence on the case law of common courts (Order of the Supreme Court of 17.05.2019, V CZ 23/19).

At present, another problem also arises, namely whether the legal principle expressed in the Supreme Court Resolution of 8 November 2021, ref. I KZP 5/21 will be applied due to the disputed composition of the judges who issued it. The answer to this question will be provided by practice.

Finally, it is also worth mentioning that the constitutional right to defence does not extend to the falsification of medical records. If, for example, a doctor falsifies medical records and is subsequently charged with a medical mistake, he will be held liable both for the medical mistake and, independent of liability for the medical mistake, for falsifying medical records (Article 271 of the Penal Code/270 of the Penal Code).

[author: Aleksandra Lipien]


{ 1 comment… read it below or add one }

Jolanta February 17, 2022 at 15:05

Very interesting article, I’ll be waiting for more on similar topics


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