The ECtHR will have to assess, among others, whether Polish law provides persons with intellectual disabilities the necessary provisions to allow them free and effective participation in judicial proceedings.

The story of M.P.

M.P. suffers from an intellectual disability and is assisted by, among others, psychologists. After returning from his therapist one day, M.P.’s mother noted that there was blood on his body and his behavior was frightened and anxious.

The family initiated a criminal case in domestic courts, but the proceedings ultimately ended in the therapist's acquittal. The main reason of this decision was the fact that the courts found the testimony of the victim unreliable due to the state of his mental health.

In his application to the ECtHR, M.P. alleged that there was a violation of his right to fair trial and he was the victim of discrimination by the national justice system.

No legal safeguards

Polish law still does not provide measures that take into account the special needs of people with intellectual disabilities. The Polish regulation at the time of adjudication in M.P.'s case did not provide effective provisions in the criminal procedure for persons with intellectual disabilities.

Although in recent years there have been some positive changes in the Polish law, these changes constitute just the tip of the iceberg of what must be done, as the positive developments do not meet international standards for protecting the rights and interests of victims.

The improvements cover, among others, certain new provisions inserted into the criminal code regarding disabled victims of sexual crimes and the possibility of appointing a trusted person who could accompany the victim during preliminary proceedings.

Still, there are no regulations that limit the number of examinations of victims, even though such examinations are very stressful for persons with intellectual disabilities.

"People affected by mental disabilities should be provided with additional legal safeguards, such as an obligatory consultation with an expert psychologist about questions that will be posed to them during interrogation," said Marcin Szwed, a lawyer at the Strategic Litigation Program of the Helsinki Foundation for Human Rights.

Amicus curiae opinion

The Helsinki Foundation for Human Rights has prepared an amicus curiae opinion in M.P.'s case. It focuses primarily on legal analysis of Polish and international standards pertaining to the equal access of people with intellectual disabilities to the criminal justice system, both as witnesses and victims.

These people are particularly vulnerable to violations such as not receiving a proper hearing or even being completely neglected during investigations and other legal procedures. In addition to shortcoming in criminal procedures, there are no provisions for persons with mental disabilities in civil and administrative procedures.

The situation in other countries

Positive examples of respect for the rights of victims and witnesses with disabilities can be seen in, among others, German, British or Australian legal codes. For example, German guidelines for criminal and administrative proceedings indicate that persons with mental disabilities are examined while in the presence of a person they trust who is able to facilitate communication between the person with disabilities and the examiner.

"In Australia, judicial officers have access to very specific guidelines and handbooks on how they should behave in relation to people with disabilities as well as how to adjust the layout of the court and how to tailor judicial proceedings to the particular needs of a person with a intellectual disability," said Michał Kopczyński, a lawyer with HFHR.

Beyond the amicus curiae, the Helsinki Foundation for Human Rights has also called on the minister of justice to introduce amendments to Polish procedures in order to provide adequate provisions and safeguards for people with mental disabilities.

M.P.’s full application to the ECtHR is available here.