The Ombudsman (RPO), Prof. Marcin Wiązek, asked the Minister of Justice to amend the Code of Conduct in cases of misconduct (k.p.w.). The intent of this initiative is to enable victims to access the data of the offender, including his address of residence, essential to file a civilian action. Current regulations in this area are a origin of problems for victims who want to exercise their civilian rights.
Current situation
The current rules lead to paradoxical situations in which victims can have access to full data of the perpetrator only in circumstantial cases. For example, if the offender refuses to accept a mandate and the case goes to court, the victim gains the position of a party, which allows him to access the case file, including the offender's address. The same is actual erstwhile the offender has accepted the mandate and then seeks to revoke it, where the victim's participation in the proceedings is compulsory.
However, if the offender accepts a mandate without further legal proceedings, the victim shall be deprived of access to key data, including the offender's address. The announcement of punishment of the offender in the mandate procedure shall cover only information specified as the name, kind of offence and legal qualification. The deficiency of access to the perpetrator's address makes it hard for the victims to take further legal action on a civilian road.
Problem with deficiency of access to the perpetrator's data
The Ombudsman points out that the deficiency of access to the home address of the offender importantly impedes, and sometimes even prevents, the victims from entering civilian proceedings. In a letter to the Minister of Justice, Prof. Wiązek notes:
‘Aside from the defendant's name and address, indicate his address and whether the parties have attempted mediation or any another out-of-court way to resolve the dispute, and if specified attempts have not been made, explain the reasons for not taking them... Therefore, compliance with the provision requires prior contact with the defendant, which may be initiated by the plaintiff erstwhile he is known to have the address of the offender."
The deficiency of access to these data puts the victims in a hard situation as it prevents them from making effective legal claims.
Violation of the rule of equality
The Ombudsman besides points out that the current government violates the constitutional rule of equality. In practice, the situation of the victims varies according to whether the proceedings are conducted in a mandate or in a judicial manner. It is up to the perpetrator to decide whether or not to accept the mandate. Consequently, it is the offender, not the victim, who has a real impact on whether the victim will be able to effectively prosecute his claims.
Proposal for amendments
In the light of the above problems, the RPO proposes to add a fresh § 6 to Article 98 as follows:
‘When a criminal mandate is final, the persons who have been found guilty shall be informed of the punishment of the offender and of the right of access to the information on which the punishment is based.’
As a consequence of this change, the victims would gain access to the data disclosed in the business notes, which would enable them to draw up a civilian suit. Prof. Wiązek emphasises that the proposed amendment would not prolong the mandate procedure as access to the documentation would only be guaranteed erstwhile the mandate becomes valid.
Summary
The Ombudsman's appeal to amend the Code of Conduct on Offences is simply a consequence to an crucial problem faced by victims in mandate proceedings. The current regulations make it hard for them to prosecute civilian claims effectively, which is contrary to the rule of constitutional equality. The proposed amendment, which would let access to the offender's data, is simply a step towards ensuring full rights for victims in civilian proceedings, which is essential for the equitable functioning of the judiciary.
Read more:
The RPO calls for easier access to the offences concerned
