Reimbursement of earnings or income lost by the witness as a result of appearing before a court – commentary on the ruling of the Supreme Court of 5 June 2023, I ZSK 44/22

Abstract

The Art. 618b § 3 of the Code of Criminal Procedure establishes the upper limit of compensation for lost earnings or income that may be awarded to a witness in connection with his appearance before a criminal court. This maximum amount is much lower than the average daily wage of a person receiving the minimum wage and, as such, in most cases, does not compensate for the actual loss suffered by the witness who appeared before the court. For this reason the above-mentioned provision is considered inconsistent with the Constitution. For now, however, the Constitutional Tribunal has not recognized it as such, so this provision remains in force. Nevertheless, some judges do not apply it, assuming that they have the right to omit provisions that, in their opinion, are inconsistent with the Constitution. By doing so, they expose themselves to disciplinary liability. This gloss (partially critical) concerns the judgment of the Supreme Court – Chamber of Professional Responsibility, pursuant to which the court acquitted a judge who had acted in such a way.