The rights of the injured person in criminal proceedings; the injured person as the subsidiary prosecutor SK 22/13
Failure to guarantee that the injured person has the possibility of participating in a court sitting regarding the discontinuation of proceedings prior to a court hearing infringes the said person’s constitutional right to a fair trial.
On 30 September at 2 p.m., the Constitutional Tribunal pronounced a judgment concerning a constitutional complaint lodged by Mr T. J. with regard to the rights of the injured person in criminal proceedings and the rights of the said party as the subsidiary prosecutor. The judgment was issued at a sitting in camera, on the basis of Article 59(2) of the Constitutional Tribunal Act of 1 August 1997 and § 48 of the Resolution of 3 October 2006 on the Rules of Procedure of the Constitutional Tribunal adopted by the General Assembly of the Judges of the Constitutional Tribunal.
The Constitutional Tribunal adjudicated that Article 339(5) in conjunction with Article 54(1) of the Act of 6 June 1997 – the Code of Criminal Procedure, insofar as it did not guarantee that the injured person had the possibility of participating in court sittings regarding the discontinuation of proceedings prior to a court hearing, which were referred to in Article 339(3)(1) of the Code of Criminal Procedure, was inconsistent with Article 45(1) in conjunction with Article 2 of the Constitution.
As to the remainder, the Tribunal discontinued the review proceedings pursuant to Article 39(1)(1) of the Constitutional Tribunal Act.
The Constitutional Tribunal pointed out that all the participants in those review proceedings before the Constitutional Tribunal were unanimous in arguing for the obvious unconstitutionality of the regulation challenged by the complainant, and hence the complaint was considered at a sitting in camera, in accordance with the procedure set out in Article 59(2) of the Constitutional Tribunal Act.
The Constitutional Tribunal stressed that, in accordance with the previous jurisprudence of the Constitutional Tribunal, the constitutional right of the injured person to a fair trial required that criminal proceedings should be shaped in compliance with the principles of procedural justice, and thus also by taking account of the legitimate interests of the injured person. Among numerous rights enjoyed by the injured person within the scope of criminal proceedings, it is of primary importance to guarantee that the injured person will be a party to those proceedings, especially at the stage of court proceedings. For that reason, what is of particular significance is the moment when the injured person may become involved in the proceedings as a party thereto.
The Constitutional Tribunal stated that, in the light of the unambiguous wording of Article 339(5) of the Code of Criminal Procedure, the injured person had no right to participate in court sittings regarding the discontinuation of proceedings prior to a court hearing, which were referred to in Article 339(3)(1) of the Code of Criminal Procedure. As a result, the injured person is not notified about the place and date of such sittings and s/he is not served with a ruling that is pronounced there.
This in practice entails that the injured person is deprived of the possibility of exercising his/her right to act as the subsidiary prosecutor, as provided in Article 54(1) of the Code of Criminal Procedure. Indeed, pursuant to Article 54(1) of the Code of Criminal Procedure, it is justified for the injured person to expect that his/her right to file a statement about his/her intention to act as the subsidiary prosecutor, i.e. to acquire the rights of a party to proceedings, will be effectively protected until the commencement of judicial examination during the main hearing, i.e. until the moment of reading out the indictment.
By contrast, in the case of the discontinuation of proceedings prior to a court hearing, the right of the injured person is not guaranteed by any procedures or the court’s obligation to provide relevant notification, but it is only and exclusively safeguarded by the forethought and inquisitiveness of the injured person, which in such circumstances may prove to be insufficient. Thus, what may occur is the infringement of legally protected interests of the injured person, as s/he does not have the right to participate in court sittings at which a given court may pronounce a ruling that would eliminate the possibility of issuing a judgment in a criminal case concerning the said injured person.
Therefore, the Constitutional Tribunal decided that court proceedings in a criminal case in which the indispensable rights of the injured person were not guaranteed did not meet the constitutional standard of procedural justice, arising from Article 45(1) in conjunction with Article 2 of the Constitution.
The hearing was presided over by Judge Marek Zubik, and the Judge Rapporteur was Judge Andrzej Wróbel.