The Right to Fair Trial in Poland
by Andrzej Rzeplinski*
I. Introduction
The provisions of the Constitution still in force in Poland do not guarantee the right to fair trial and they do not even guarantee the right to court. Neither do they give an individual any constitutional guarantees to vindicate civil and political rights, which, by the way, were pushed to the margin of social rights used in propaganda. This is not surprising as, after personal approval by J. Stalin, they were passed on 22 July 1952, and in the constitutional law, which embodied the Leninist concept of unity of government, the Parliament formally stood in a higher place than the courts which were subordinated to the acts of Parliament. Practice was that judges conformed to rules standing below acts of Parliament, and even to instructions given on the telephone. Such instructions would come not from the state organs but from party committees, and occasionally, from the security service. Obviously, the communist party committee did not intervene in all cases. In a great many cases this was not necessary. Judges knew the political limits of their power, and in addition, a mechanism for setting aside any valid judgements in criminal and civil cases which for ideological reasons were not liked by the authorities functioned well. Till the end of the Polish People's Republic judges who had been discredited by court murders in the years 1944-1956 worked in the judiciary, and they were a living symbol of the low status of the judiciary in the communist system of government.
The appearance of illegal democratic opposition in the 1970s, and in particular, publications uncensored by the state censors, made the conviction spread among the intellectuals having a negative attitude to communism that there was no real guarantee provided for the right to court. At the same time, in the judiciary, especially among younger judges, a need was growing to restore the role the judiciary had as the third power until the war of 1939. On the other hand, frustration brought about by the status quo in the People's Republic was increasing. Therefore, the years 1980-1981 were a time of particularly intensive efforts in the judges' community in the Solidarity movement to amend the Constitution and legislation safeguarding independence and impartiality of courts. After imposition of martial law on 13 December 1981, rare cases of younger judges joining the communist party (one-third in the district courts, over two thirds in the Voievodship courts and almost everybody in the Supreme Court)(1) were signs of their frustration and passive resistance.
The low position of courts in the system, and the low salaries for judges in the 1980s resulted in many judges giving up their jobs. This made the crisis of the judiciary even more serious, and actually deprived individuals of the right not only to independent trial, but also to a competent court as provided in Art 14. 1 of the International Covent on Civil and Political Rights (ICCPR). To make the crisis complete, there were only small investments in court buildings. Generally speaking, only in the former German territories of Northern and Western Poland were courts located in buildings worthy of the name.
This situation continued until the end of 1989. Since then, there have been many positive changes in the judiciary, but a lot has remained unchanged from the period of over forty years of the communist rule.
The changes which have provided guarantees for the independence of the courts are as follows:
1) Guarantee for the irremovability of judges (Art. 60.2 of the Constitution passed on 7 April 1989 as a result of the Round Table contract).(2) It should be added that the constitutional law itself is a hybrid. The matter of separation of powers is provided for in the so-called Small Constitution of 17 October 1992,(3) which does not include provisions on courts. A few dozen provisions of the above-mentioned Constitution of 1952, somewhat modified in 1989, remain in force.
2) Establishing the National Council of Judiciary in the same amendment (Art. 60.3 of the Constitution). The Act of 20 December 1989(4) on the National Council of Judiciary, passed for this purpose, makes the Council an institution guarding the independence of judges and courts (Art. 1). The Council, in which all the branches of power are represented, but where elected judges have the majority as in Latin European countries, decides all appointments of judges. Without its consent, the President may not sign any certificates of appointment (Art. 2.1).
3) Several profound amendments to the Act of 20 June 1985 providing law on the structure of the common courts of law and guaranteeing the independence of judges' decisions.
4) By a number of acts of Parliament the almost full monopoly of common courts of law for jurisdiction in civil, criminal and administrative cases was reintroduced. This process will be completed with the coming into force of regulations on the right of courts to decide on pre-trial detention on August 1996.
5) A few amendments to the Code of Criminal Procedure, which included reintroduction of a number of trial guarantees for the defendant, including the petition for cassation to the Supreme Court which had been abolished in 1949.
6) Poland signed the European Convention on Human Rights (on 26 November 1991), and since 1 May 1993 any individual has a right to complain about violation of the Convention. Numerous publications on judgements of the European Court of Human Rights (ECHR), and in particular ones with reference to Art. 6 of the Convention, have made Polish jurists more familiar with the standard worked out in the European system.
7) Slow but clear opening of judges of higher courts to the application of ECHR and ICCPR provisions in cases when there are lacunae in Polish law. This is especially true with regard to judges of the Main Administrative Court and the Administrative Chamber of the Supreme Court. It is worth noting, that the Constitutional Court has never referred to the ECHR in its decisions.(5)
As has been mentioned above, the Polish constitutional lab does not guarantee the right to court. However, the Constitutional Tribunal in the decision K. 4/91 found this right existed based upon the wording of the two previously existing provisions of the 1952 Constitution, which was amended 29 December 1989. The first provision says that "the Republic of Poland is a democratic state ruled by law and implementing the principle of social justice" (Art. 1), while the second one says that "administration of justice in the Republic of Poland shall be carried out by the Supreme Court of Justice, common courts of law and special courts (Art. 56.1)." As the Tribunal acknowledged, these provisions "imply a constitutional principle of the right to court for individuals and entities who engage in legal actions", and stressed furthermore that "it is a matter of the constitution that an individual (or another entity) may have access to courts; all else is contingent upon statutes." The Tribunal elaborated on this view in a number of decisions, and a recent resolution adopted 25 January 1995 on the common applicability of interpretation to laws (W 14/94); the Tribunal stated, "Under the rule of law, the right to court may not be solely understood in formal terms as access to the court procedure in general, but on substantive grounds, as a possibility of effective protection of rights in a trial procedure. The guarantee means inter alia individuals are entitled to seek protection of their interests before a court having the competence to consider the case with an effect which would ensure implementation of their claims."(6) It is noteworthy that most often it was the Ombudsman who initiated the Constitutional Tribunal's jurisprudence in this respect. He initiated proceedings before the Tribunal on the very basis of the breach of the right to court. The Ombudsman interprets this right as three inextricably linked elements: the right to access to the court, the right to an adequate shape of proceedings before the court and the right to a court verdict.(7) These views are fully corroborated by the constitutional law doctrine.(8)
On 18 August 1995, the government submitted drafts of the new criminal code, criminal proceedings code and executive criminal law to the Sejm [parliament].(9) Work on these drafts started in 1989. First drafts were ready in 1991, however a variety of political and substantive disputes caused continuing delays in their submission to the Sejm. The same may apply to drafts already submitted to the Sejm. By late January 1996, the penal law codes already proposed have not been past their first reading yet. The Sejm is preoccupied with examination of the espionage affair of former Prime Minister Jzef Oleksy; there is also the possibility of preliminary parliamentary elections. Hence, the future of those drafts is uncertain. Moreover, the final text of the criminal law codes, which might possibly be enacted within the next two years, may vary considerably from the initial drafts. For this reason, I have decided not to present the content of provisions contained in these drafts. Suffice it to say they suggest elimination of a number, however not all, of the inconsistencies of the present Polish law with the EHRC standard.
The right to court is to be protected by judges. The number of judges in Poland has grown from about 4,500 in 1989 to 6,500 in 1996. However, the number of cases in which decisions were made increased even faster. In 1994, 4,868,350 cases were filed with common courts of law, while in 1988 there were only 1,288,469.(10) These figures do not include cases decided by the Supreme Court, the Main Administrative Court and military courts.
In comparison with the supreme courts in other countries, the number of justices in Poland is relatively high. There are seventy-one justices of the Supreme Court, including the Chief Justice, (as of 20 January 1996), and there are two vacancies. The Chief Justice at the end of 1995 submitted a motion to the Polish President to pass an ordinance which would increase the number of justices to 93. He justified his motion by citing an increase in the number of cases after the right to cassation was re-introduced.
There are 170 judges (as of 31 December 1995) in the Main Administrative Court, including 116 in ten local branches. As for common courts of law (as of 30 September 1995) there are 249 judges in courts of appeal and 1,750 in Voievodship (provincial) courts. In district courts there are 4,013 judges, 590 assistant judges who had already passed the exam for judges, and 1,882 judge trainees who are completing a two year preparation course. Finally, 62 judges (as of 1 January 1996) worked in military courts.
Although the total number of barristers, graduates of university law faculties, is over 55,000 in Poland, the number of barristers having a right to appear in courts in criminal and civil cases is relatively low. On 31 December 1995, 7,277 jurists were listed as barristers, including 1,725 in Warsaw but out of these 7,277, many, i.e. 1,026, are retired, and 1,662 are law professors and legal advisers who are rarely appearing in courts as defence lawyers.
A. Treatment During Detention Prior to and During Trial
1. Protection from torture and other cruel, or degrading treatment
The execution of pre-trial detention as well as the penalty of imprisonment are governed in Poland by the Code of Execution of Penalties of 19 April 1969 (hereinafter: K.k.w.), which was profoundly amended after 1989 (three times in 1990 and once in 1995). The prison administration in Poland was thoroughly changed in 1989. About one-third of Poland's 18,000 prison officers were dismissed for alcoholism, corruption or wrong attitude to inmates. In schools for prison guards, the teaching of human rights was introduced. The disciplinary penalty of confinement in an isolation ward for up to 6 months (at present the strictest disciplinary penalty is placement in a single cell for up to one month) and the penalty of hard bed (it could be imposed for up to 14 days) were removed from the prison regulations. Since 1990, an imprisoned person may appeal any decision of the penitentiary administration to the penitentiary court (Art. 14a, K.k.w.). Since 1988, prisons have been controlled by the Ombudsman and since 1989, charities, religious and human rights organisations have had practically unlimited access to prisoners. The problem is that remand prisons are overcrowded. While prisoners receive relatively proper treatment from the personnel, there are bad conditions in isolation. According to the Headquarters of Prisons, on 30 November 1995 there were 17,708 persons (including 654 women) and 47,654 prisoners (including 960 women) in prisons for detention for persons in custody pending inquiry. The majority of prison buildings were built before 1939 and should undergo major repairs.
2. Protection from self-incrimination
a. Article 63 of the Code of Criminal Procedure of 19 April 1969 (hereinafter: K.p.k.) grants the accused the right to refuse to answer individual questions or to testify without stating any reasons. The provision, however, also stipulates that the accused "has a right to testify," which creates a kind of psychological pressure on the accused. The questioning person (judge/prosecutor/police officer) should inform the accused that he may refuse to testify. However, this is not an absolute duty and the accused not be informed about their right to remain silent. However, "lack of such information or incorrect information may not bring about any negative consequences to the proceedings." (Art. 10 1, K.p.k.).
b. No.
c. No.
d. In the preliminary investigation the possibility to use the assistance of a defence 1awyer is in certain cases illusory. This is due to the fact that the prosecutor gives his consent to communicate with the barrister. He may "reserve his right that [during the communication with the defence lawyer] he or a person authorised by him will be present." (Art. 64, K.p.k.).
e. An unlawfully obtained confession may not be used as evidence against the accused (Art. 10. 1, and Art. 157 2, K.p.k.).
f. In the Polish criminal procedure it is not forbidden to accept as evidence a fact made known due to acts forbidden for gathering evidence.(11)
g. Hypnosis and narcoanalysis are not allowed; it is forbidden to interrogate a drunk person or a person under the influence of a narcotic drug, to threaten a person, to make illegal promises, to set a trap (e.g. to make somebody plead guilty using false information that the co-accused testified against the accused).(12)
h. Yes, it is.
i. First, the identity of the accused is checked. Then the accused is given the written charge and asked if he understood it and if he pleads guilty (Art. 269 2, K.p.k.). At the request of the accused the prosecutor presents to him grounds for the decision of charging him within 14 days (Art. 269 3, K.p.k.).
j. An accused's guilty plea may not be used as evidence if it was obtained as a result of an agreement which then was not kept by the prosecutor.
k. One cannot accuse himself. Before asking a question, which may entail penal responsibility, the interrogated person has to be informed about his right to refuse to answer the question. After such a warning the testimony may be presented as evidence in criminal proceedings. This usually takes place when a witness or a party to civil, family or administrative proceedings has borne two conflicting testimonies.
3. Treatment of accused and convicted persons
Persons in detention are kept separately from convicted prisoners. They are usually in separate institutions. In penal institutions, in practice, there are often special wards for detainees, which is permitted by Art. 83 3 of K.k.w. The person given a prison sentence that is not yet valid may be moved to a penal institution after 14 days from the date of the sentence. The criminal court may object to it "for important reasons" (Art. 90 1, K.k.w.).
4. To what extent is it the general rule (and practice) that persons awaiting trial shall not be detained in custody, so that they can assist in the preparation of their defence?
a. Until 4 August 1996 detention during preliminary investigation was instituted by the prosecutor after indictment by the court.(13) Detention, like other preventive measures, may be applied "in order to secure the correct proceedings if the evidence collected against the accused substantiates his committing an offence" (Art. 209, K.p.k.). Detention "may be used if (i) there is a justified apprehension of flight or hiding of the accused, especially when his identity cannot be established or he does not have a permanent place of residence in Poland, (ii) there is a justified apprehension that the accused will try to suborn someone or in another way obstruct criminal proceedings" (Art. 217. 1). Additionally, detention may be applied when the accused is charged with an offence being subject to the penalty of imprisonment for at least three years or if he was sentenced to at least such a penalty by the court of first instance (Art. 217 2, K.p.k.), or exceptionally, if there is a justified apprehension that he will again commit an offence against life, health or public safety subject to the penalty of imprisonment for at least three years, especially if he threatened to commit such offence (Art. 217 3, K.p.k.). The continuation of detention requires further existence of reasons for which it was applied (Art. 213, K.p.k.). If it is not supported by "special reasons," detention should not be used any more if it would be "a serious danger" to the accused person's life or health or if it "would bring about serious negative effects for the accused or his close relatives" (Art. 218, K.p.k.).
b. In 1994 courts made decisions in 204,515 cases. This included 27,938 persons detained prior to or during trial (13.7 per cent of all the accused, as compared with 16.4 per cent in the previous year), and this in turn included 21,938 (78.0 per cent) detained by the prosecutor. Courts of first instance released from detention 13,481 persons (48.3 per cent of all the detained) and this in turn included 6,122 persons held prior to a final decision.(14)
5. To what extent is habeas corpus, amparo, appeal, or any other remedy available for challenging a denial of release from detention, conditions of pre-trial detention, or the failure to provide a fair procedure prior to trial?
According to the Constitution of 1952 "the inviolability of the person" is guaranteed. "A citizen(15) may be deprived of his freedom only in cases specified by law. A detained person shall be set free unless a warrant for his arrest from a court or prosecutor has been served on him within forty-eight hours beginning with the moment of his detention" (Art. 87).
Every person detained "is entitled to complain to the district court . . ." (Art. 207a 1, K.p.k.).(16) "The court examines the appeal without delay. In the event of finding no grounds for detention, the court orders release to the detained person immediately . . ." (Art. 207a 2).
The decision of the prosecutor "regarding the application of pre-trail detention may be appealed to the court competent to examine the case" (Art. 212 1).
If "the health of the accused requires it, pre-trail detention may be executed only by placing him in the appropriate health institution" (Art. 219, K.p.k.), e.g. in a hospital under guard.
According to K.k.w. "Execution of the pre-trail detention serves the purpose of attaining the aims for which this measure was applied . . ." (Art. 82). According to this Code, the detained "immediately after his detention in a prison for detention pending inquiry is entitled to inform his closest relative about his location, and on approval of the prison governor another person instead or apart from this person" (Art. 85). In detention he enjoys at least such rights as a convicted prisoner "and there are no more restrictions applied to him than necessary . . ." (Art. 86. 1); he does not have to work, apart from cleaning up in the prison (Art. 87), and his "solitary confinement requires consent of a penitentiary judge" (Art. 88. 1). Under the above-mentioned Art. 14a, K.k.w., the detained person may appeal against any unlawful decisions to the penitentiary court.
5.a. The Act of 5 December 1982 on martial 1aw(17) does not stipulate any limitations of rights in criminal proceedings.
B. Notice
1. How long can a person be detained without being charged for a criminal offence or without his/her appearance in court?
The K.p.k. does not specify a maximum period for pre-trial detention.
There are three periods of detention in a preliminary investigation:
1) A period up to three months (Art. 222 1, K.p.k.). Theoretically, it means that a prosecutor may detain a person from one day to three months. As research shows,(18) in most cases (95.3 per cent) it is used straight away for three months, which limits the right to appeal against any possible decisions on extending detention.
2) A period up to one year - detention may be extended by the court competent to hear the case at the prosecutor's request if due to special circumstances, investigation could not be finished within three months (Art. 222 2, K.p.k., item 1).
3) A period longer than one year - in particularly justified cases detention may be extended by the Supreme Court at the General Prosecutor's motion due to special circumstances (Art. 222 2, K.p.k., item 2).
From 4 August 1996 under amended Art. 222, K.p.k., the court will be able to detain a person for not longer than 12 months (Art. 222 2). And "the total time of detention until the date of the first decision by the court of first instance may not exceed one year and six months, and in cases regarding a felony two years" (Art. 222 3, K.p.k.). In "particularly justified cases," the Supreme Court will be able to extend detention beyond these time limits at the request of a court in which the case is being heard, or, in preliminary investigation, at the General Prosecutor's request, if the necessity arises in connection with suspension of criminal proceedings, continuing psychiatric observation of the accused or performing acts concerning taking evidence abroad, and also if the accused purposely prolongs finishing the proceedings within the time limits mentioned above" (Art. 222. 4).
B.1.a.
The court delivers the indictment to the accused at least 7 days before the first hearing (Art. 302 1, K.p.k.). In that time the accused and his defence lawyer "are obliged to submit" all the evidence known to them that is necessary to examine the case (Art. 302 2, K.p.k.).
The court proceedings start with reading the indictment, then the judge chairing the bench asks if the accused understood the content of the indictment, whether he pleads guilty and whether and what he wants to testify (Art. 332 1, K.p.k.). After hearing the accused, the judge chairing the bench "informs him about his right to ask questions to persons heard and to testify regarding each piece of evidence" (Art. 332 2, K.p.k.).
2. How is an accused person guaranteed prompt, detailed notice of the charge(s) against him or her?
a. See also B. 1 .a., paragraph 2.
For a person not speaking Polish the possibility to have a translator is not formulated as a right of the accused. The participation of a translator is charged to the costs of criminal proceedings, and in case of a sentence, the accused is charged with the expenses of the translator and translation (Art. 547, K.p.k.). Nevertheless, "if the accused does not speak Polish, the decision of charging him, the indictment and decisions against which one may appeal or decisions ending proceedings are delivered to or announced to the accused along with a translation" (Art. 62). A translator is also called when the accused is deaf or dumb and communication in writing is not sufficient (Art. 159 1, K.p.k.). The Code does not call for providing translation during all acts of taking evidence in the court. It reads that at the end of a court hearing "the accused with whom the court communicated through a translator should be translated at least the final conclusions of speeches before he is given the floor" (Art. 354, K.p.k.).
b. If there are grounds for drawing up an indictment, the suspect is acquainted with all the materials of the proceedings, is informed about the right to go through the files personally and a defence lawyer is allowed to take part in the act. The defence lawyer is entitled to go through the files within 7 days before the date of final acquaintance of the suspect with the materials of the proceedings" (Art. 277 1, K.p.k.). Within 3 days from getting acquainted with the materials of the case the suspect is entitled "to motion to complete the proceedings". He should be informed about this right. (Art. 277 2, K.p.k.).
c. Before pre-trial detention, the accused is given two decisions:
The first decision is about the presentation of charges, and has to indicate the suspect, define the act he is charged with and the legal qualification. At the suspect's request within 14 days he has to be given written grounds for such decision. (Art. 1692and3,K.p.k.).
After interrogating the suspect, a second decision is presented about pre-trial detention.
d. Yes. The prosecutor, like any other "agencies carrying out criminal proceedings is obliged to examine and take into account circumstances both in favour and against the accused" (Art. 3 -1, K.p.k.).
3. How is the accused guaranteed adequate time and facilities to prepare his or her defence before trial?
a. The accused has a right to a legal aid right from the beginning. But see answer A.2.d.
b. See B.2.b.
c. The accused may review the materials of the preliminary investigation (Art. 277, K.p.k.), and all the evidence, including names of witnesses.
The already mentioned Act of 6 Ju1y 1995, however, made an amendment to the K.p.k., introducing the institution of the witness incognito. Such witness may appear during any trial, even one concerning a very trivial offence. The advocates of such a solution argued that it would preserve the constitutional equality before the law. It is the public prosecutor during preparatory proceeding or the court during court proceedings who decides to keep secret the data which could disclose the witness's identity Such decision can be made if "there is a reasonable apprehension of danger to life, health, freedom or property of considerable value of the witness or a person nearest to the witness" (Art. 164a 1, K.p.k.). In such a case, the above mentioned data is known only to the prosecutor and the court, and, if it is necessary, to the police officer carrying out the criminal investigation. "Minutes of the deposition of the witness should be made available for the accused or his defence lawyer in a way preventing reading data which could disclose the witness's identity" ( 2). The witness should be heard in a place preventing disclosure of its identity. The public prosecutor but not the defence lawyer may be present during hearing ( 3). The accused or his defence lawyer can ask questions only through the prosecutor or the court ( 4). The accused may lodge a complaint against the decision to keep the witness's identity secret ( 5).
Till the middle of January 1996, the institution of the witness incognito was applied in practice only during the preliminary investigation. According to the public statements of the police, this institution has already proved valuable in several cases against organized criminal groups. It is difficult to say how it will do at the court. In Poland, there are no court buildings with separate entries for the accused, witnesses and judges; there are also no court rooms to hear a witness in a way preventing establishment of his identity by the accused and his defence lawyer.
d. Evidence supporting the accusation "shall be if possible presented before the evidence supporting the defence" (Art. 335, K.p.k.). Court proceedings are based on the principle of the adversary trial system (Art. 315 1, K.p.k.). The accused and his defence lawyer are always last to comment on any matter. If during the trial it turns out that "new evidence should be found," the court may hand over the case to the public prosecutor's office (Art. 244 1, K.p.k.). If during the trial, due to new circumstances, the prosecutor "charges the accused with another offence in addition to the indictment, the court may upon the consent of the accused examine the new charge during the same trial, unless preliminary investigation related to this new charge is necessary" (Art. 345 1, K.p.k.). The court should also caution the accused about the possibility of other legal qualification of the criminal act he is accused of (Art. 346, K.p.k.).
C. Counsel
1. The Constitution of 1952 provides that, "The accused shall be guaranteed the right to defence. The accused may have defence counsel, either of his own choice, or appointed by the court" (Art. 63.2). The right to defence and to legal aid for defence may be executed at each stage of the penal proceedings (Art. 9, K.p.k.). It does not mean, however, that the accused has to have legal aid -- even during court proceedings. Counsel is obligatory only in case that the accused is deaf, dumb or blind, or if there are reasonable doubts as to his/her mental health (Art. 70 1, K.p.k.). The accused should also have a defence lawyer in proceedings before the Voievodship court acting as the court of first instance, i.e. in cases related to a felony(19) or certain types of severe misdemeanors. In such cases, the participation of the defence 1awyer is required during the first-instance trial and, "if the president of the court or the court finds it necessary" (Art. 71, K.p.k.) also during the trial in an appellate instance. Failure to provide a defence lawyer in the first instance constitutes by virtue of the 1aw a prerequisite for reversal of a judgment during the trail in an appelate instance, irrespective of the limits of the appeal (Art. 388 6, K.p.k.).
Article 70 1, K.p.k., however, means also that the accused who does not speak Polish or who cannot afford a defence lawyer of his own choice, does not have the right to obligatory free legal aid. In such cases, the defence lawyer is appointed by the court upon the consent of the President of the court. If the accused cannot afford the costs of the defence 1awyer appointed by the court, it is borne by the Treasury (Art. 29.1 of the Law on the Bar).(20)
The K.p.k. (Art. 69) does not make such consent dependent on the level of complexity of the case but rather on proving that the accused cannot afford the costs of the counsel without detriment to his maintenance or maintenance of his family. In practice, both the above-mentioned conditions have to be met. According to the decision of the Supreme Court, one cannot appeal against the refusal to appoint the defence lawyer by the court of first instance.(21)
If the accused wants to appeal against the sentence of a Voievodship court (Art. 394 1, K.p.k.) or wants to submit a petition for cassation to the Supreme Court, he has to appoint his barrister (Art. 464 2, K.p.k.).
In Warsaw, courts appoints each barrister as a defence lawyer in 20-30 cases a year. During the convention of the Warsaw Bench of the Bar in 1995, there were futile attempts to move the Sejm to abolish the institution of an ex officio defence lawyer. The level of ex officio legal aid provided by barristers is usually very low, since due to very limited court budgets, the barristers have to wait for a long time for their remuneration. A judge sitting in the Court of Appeal in Wroclaw has told me that if the barrister appointed by the court writes an appeal of two pages, he can get the maximum fee. Usually, however, the appeal is a half page long.
The accused may appoint up to three defence lawyers for defence at his own expense (Art. 68, K.p.k.). Only a lawyer authorized for the defence in compliance with the Law on the Bar [i.e. a barrister] may be a defence counsel for the accused (Art. 72, K.p.k.).
A common practice in the Polish courts is the so called substitution, when a barrister authorizes another one to replace him in a case in which he is a defence 1awyer. The substitution is usually a result of the conflict of the time of various cases, the barrister's illness or holiday.
a. The accused is informed about his right to defence according to Art. 10 1, K.p.k.
b. The K.p.k. does not limit the time of consultation with the defence lawyer.
c. Those guarantees are the subject of Art. 9 and Art. 68, K.p.k., which have already been discussed.
d. In remand prisons, there are separate rooms for the consultation of an accused with their defence lawyer. Rules of the Execution of the Pre-trial Detention of 2 May 1989(22) guarantee the secrecy of the correspondence with the defence lawyer (35.1).The prosecutor (or the court), however, may reserve his presence or the presence of a person authorised by him during the communication with the defence lawyer ( 35.2).
2. What arrangements are made for accused persons who cannot afford counsel to
receive counsel without cost?
a. As provided in the Law on the Bar (Art. 1), the members of the Bar should provide legal counsel and support the protection of civil rights and freedoms, as well as the shaping and application of law.
Barrister's fees are regulated by the Minister of Justice's Ordinance of 4 June 1992 on the fees for defence lawyer's actions in proceedings before judicial bodies.(23) The fee is to be determined by the agreement with a client according to the rates specified in the ordinance (1). The lowest rates are for participation in preliminary investigation (PLZ 6 to 200),(24) while the highest (PLZ 20 to 600) is for the defence before the Voievodship court acting as the court of the first instance or before the court of appeal or before the Supreme Court ( 20). In cases where there is ex officio legal aid, the court states the rate of the barrister's fee in its final judgment. It means that from the legal point of view, there is no difference between the fee of the barrister appointed by the accused and the one appointed by the court.
Collection of Principles of Barrister's Ethics and Dignity of the Legal Profession(25) passed on 25 October 1988 by the National Council of the Bar provides that the barrister should observe "unconditional scrupulosity" in financial settlements with his client ( 53). In practice, however, the market rules dominate the issue. The best barristers, especially in cases related to famous murders or scandals, are paid the rates which are several tens times higher than the highest rates specified in the above-mentioned ordinance of the Minister of Justice of 1992.
b. No.
c. In proceedings before the court of appeal or cassation proceedings, the conditions of appointing a defence lawyer by the court are the same as in the case of appointment of counsel for people who cannot afford it, which has already been discussed.
3. Does a person's right to counsel extend through the post-conviction 1evel?
The defence counsel (either of choice or appointed by the court) is appointed for all stages of legal proceedings, including actions following the conviction becoming final and valid, unless the appointment of counsel specifies any limits to it (Art. 75 1, K.p.k.). The post-conviction actions concern the petition for cassation, instituting the trial de novo, extradiction, act of pardon, costs of proceedings and execution of the penalty, including the penalty of deprivation of liberty. If the convicted person has not appointed the defence lawyer yet, he has the right to do that during executory proceedings (Art. 9 1, K.p.k.).
4. What protection does the accused have concerning the competence of counsel, adequacy of representation, and the adequacy of resources for the preparation of the defence at all stages of the investigation, trial, appeal and post-conviction processes?
If the barrister breaks the law, professional ethics, legal professional dignity or professional duties, he is subject to disciplinary accountability (Art. 80 of the Law on the Bar). The mildest penalty is an admonition, while the most severe one is the expulsion from the Bar (Art. 81). The penalties are sentenced by the High Disciplinary Court of the Bar (Art. 63). The K.p.k. (Art. 78) in turn, provides that "in case of obvious breach of the professional duties by the defence lawyer, especially in relation to the defence, the court or, in preliminary investigation, the prosecutor shall notify the Council of the Bar" (Art. 58). The accused may revoke the power of attorney if he is not satisfied with his barrister; he may also demand appointment of a new defence lawyer from the President of the court. The barrister may undertake legal actions "only for the benefit of the accused" (Art. 77 1, K.p.k.).
5. How is the confidentiality of communication between the accused and counsel guaranteed?
As I mentioned before, the correspondence of the accused with his defence counsel is uncensored. Their conversations, however, may be subject to control due to the decision of a prosecutor or a court. In practice, there is no such control.
D. Hearing
1. How is the accused's right to be tried without undue delay guaranteed?
The Constitution and the K.p.k. do not mention anything about the right to be tried without delay. This is why the accused usually refers now in the complaint to the contents of Art. 6 ECHR. As a result of my discussions with the chairmen of courts about resolving complaints of the accused, that are sent to the main organisation of human rights in Poland -- the Helsinki Committee in Poland -- I found that judges are aware of this regulation of the Convention, but they are unaware that in the situation when there are no such regulations in the Constitution and the K.p.k., it should be taken into account in each case. This should be even more so because the Constitution from 1952, which is poor with regulations concerning rights and freedoms, states in the first regulation of the chapter, The Fundamental Rights and Duties of Citizens, that the "Republic of Poland shall strengthen and extend the rights and freedoms of citizens" (Art. 67.1).
a. Not applicable.
b. According to the Department of Statistics of the Ministry of Justice, in 1995 the duration of penal proceedings took, on average, 3.7 months in district courts and 6.1 months in Voievodship courts. Nevertheless in the Voievodship Court in Warsaw it took 13.8 months. In penal courts of the second instance it took 1.1 months to reach a verdict.(26)
c. There is no theory about the reasons for delays in various types of penal cases. These delays usually apply to cases concerning economic matters and cases where there are several accused. The small amount of judges that are qualified to supervise the most difficult cases concerning some economic crimes and the necessity to get aquainted with many volumes of documents, cause the accused to have to wait over one year for the first trial in the Voievodship court for the act of indictment. Another reason for delays in these cases is that the prosecutor's offices do not prepare them well. This especially applies to crimes that where not known under communism and which concern the banking sector. The case of the former President of the National Bank of Poland, that lasted for over four years in the Voievodship Court in Warsaw and ended in January of 1996 with a verdict of "not guilty", indicated that prosecutors are not acquainted with terms that are used in banking law. At the same time, it is difficult to expect that in time a certain amount of judges and prosecutors shall get much experience in managing cases that have to do with economic matters. After they become experienced, they are employed by banks and large companies, which offer salaries that grossly exceed those in the judicial system.
d. No.
e. See D.1.c.
f. New charges may be added during the course of the trial. See A.3.d.
g. No
h. The case of delay must be raised not later than during the appeal. Nevertheless, I do not know of a sentence where the court being aware that the delay was not caused by the accused, took this into account as grounds for passing leaner verdicts.
i. See D. 1.h.
j. The periods of the statute of limitations are so extensive (30 years for crimes against human life, 10 years for acts that are penalised with sentences of over 5 years imprisonment and 5 years for other crimes -- Art. 105 . 1 of the Penal Code of 19 April, 1969 (hereinafter: K.k.)), that they do not give the accused any guarantee for a prompt trial.
2. What laws or rules are there mandating that criminal and civil trials be conducted in public?
a. The Constitution of 1952 states that "Cases in all courts of the Republic of Poland shall be heard in public. The law may specify exceptions to this rule" (Art. 63.1).
This rule is repeated in the K.p.k., Art. 306, which states that the hearing shall be heard orally and in public. Children may not be present in the court room (unless the judge permits this). Also armed persons (except for authorised personnel) and persons who are not in a condition appropriate for presenting themselves before the court" cannot be present in the court room, (Art. 307 1-4).
The court may close a part or the whole case to the public on the basis of reasons such as those mentioned in Art. 6.1 ECHR, and moreover, when "even one of the accused is not yet of age" (Art. 308 1-3, K.p.k.). If there is no threat that classified state information shall be disclosed, then the accused has the right to point out a person who shall be present in the court room after the case is closed to the public (Art. 309 1 and 2), moreover, the judge chairing the bench may permit specified persons to be present in the court room ( 3). Also persons who manage judicial administration, for example the President of the court may be present in a court room during the close proceedings (Art. 32 2 of the Law on the Common Court System (hereinafter: U.s.p.)).(27) The verdict is always made in public (Art. 312 1, K.p.k.); nevertheless in juvenile courts the whole hearing is closed to the public, including the verdict (Art. 53 1 of the Act on Proceedings in Juveniles Cases (hereinafter: P.s.n.)).(28)
b. Press releases from the hearings are regulated by the K.p.k. and the Press Law.(29) The court in the case of each hearing may allow "representatives of radio, television, film and newspapers to record the hearing audio-visually, when public interest justifies this and when this shall not impede the hearing" (Art. 317, K.p.k.). Before the verdict is pronounced legally valid, the journalist cannot present the personal data or a picture or drawing of the accused or the witness without prior consent of the court or the persons in question (Art. 13.2 of the Press Law). Only initials or changed surnames may be published. Before the verdict is announced in the first instance, the journalist cannot present an opinion about the verdict (Art. 13. 1 of the Press Law). This prohibition, in fact, does not apply to persons who are known to the public.
The court has no right to censor the press releases. The policy is that the press relations should be true and exact.(30) The exactness does not apply to television relations, which show only fragments of the hearing, especially in the news.
c. See D.2.c.b.
3. What assurance does the accused have that the trial will be conducted in the sar geographic locality where the conduct at issue occurred?
The rule is that the proceedings should be conducted in the court in the district where the crime was committed (Art. 21 1, K.p.k.), and if the crime was committed in several districts, then the proceedings shall be held in the court in which the proceedings were initiated (Art. 21 ~ 2, K.p.k.).
a. "A court superior to the one conducting the proceedings may transfer the case to another court of the same 1evel, if the majority of persons who have to summoned to the hearing live close to this court and far from the one that is appropriate." (Art. 26, K.p.k.) The Supreme Court may, upon the initiative of the appropriate court and application from the prosecutor, transfer the case to another court of the same type if this is required by the judicial system" (Art. 2). Because this provision is available to the Supreme Court, it makes this option an exception, and this has been emphasised by the Court in its decisions.(31) This Court has determined that the transfer of a case to another court may take place "especially for reasons that may influence the freedom of sentencing". The reasons cannot be "technical".(32) In one of its decisions the Supreme Court has accepted that "the argument that the accused works in the district of the court as a policeman and during his duties meets with judges and other personnel of the court, does not give grounds that the case shall not be looked into in an impartial manner".(33) One of the reasons for transferring the case is the threat that because the public is very emotionally involved in a case, the appropriate court may not be impartial.
A court of a higher instance may transfer the case to another court if the case cannot be conducted because the judges working in the appropriate court have been excluded (Art. 33).
b. See D.3.c.
4. Under what circumstances, if any, is a trial in absentia permitted? Is any distinction drawn between cases in which the accused fails to appear for sentencing, fails to return during trial, or fails to appear at the beginning of the trial?
One of the main principles of a criminal proceeding is its directness. Art. 357, K.p. states that "the basis for the verdict may be only the evidence presented during the main hearing". This is why, if "there are long term reasons that do not allow for conducting the proceedings, and especially if the accused cannot be caught or he may not participate in the proceedings for reasons such as mental illness or another serious illness, the proceedings are suspended till the obstacles are resolved" (Art. 15 1, K.p.k.). The presence of the accused during the hearing is "obligatory, if the Code does not state otherwise" (Art. 321 1). The accused "has the right to be present during all the actions of the proceedings of gathering evidence" (Art. 336 1, K.p.k.). Hearing the case "during the absence of the accused, whose presence was obligatory, and by this depriving him of the possibility of defence, gives grounds for lifting the sentence during an appeal made by the same law, irrespective of the limitations of appeals (Art. 388 point 9, K.p.k.).
The Code states that there are exceptions from the obligatory presence of the accused during the hearing. "In exceptional situations, if the presence of the accused may have a bad influence on the testimony of the co-accused or the testimony of a witness or expert, then the judge chairing the bench may pronounce that the accused should leave the court room" ( 2).
The court, after a warning, may remove the accused for a certain period of time from the court room if "he behaves in a manner that disrupts the hearing or is abusive to the solemnity of the court" (Art. 322 1, K.p.k.). After the accused returns to the court room he is "immediately informed about the course of the hearing during his absence, which allows him to present his explanation to the presented evidence" ( 2). The obligation to inform the accused also applies to the situation described above and stated in Art. 336 2, K.p.k.
After the accused has presented his explanation, if he leaves the court room without permission, the court may conclude the hearing without his presence, "and the verdict reached in this case is not treated as one that has been reached in absentia" (Art. 323, K.p.k.).
If there are problems "that cannot be removed" and the accused cannot be brought to "hear the sentence, the sentence is handed over to the accused after it has been announced" (Art. 367 2, K.p.k.). In this situation the accused has seven days to apply for a written justification of the verdict (Art. 370 2, K.p.k.).
In frequent hearings pertaining to accusations of petty crimes (Art. 419, K.p.k.), in the summary proceeding in the court may, if the accused has been summoned, "conduct proceedings in the absence of the accused and pass a verdict in absentia (Art. 425, K.p.k.). The term for applying for a justification in writing starts for the accused on the day he actually receives the verdict (Art. 428, K.p.k.). The possibility of conducting the case in absentia in summary proceedings is not valid if the accused presented a justification for his absence in due time (Art. 426 2, K.p.k.).
If the given person is accused of treason (Art. 122, K.k.), coup de etat (Art. 123, K.k.), espionage (Art. 124, K.k.) and remains abroad during the proceedings, then the proceedings may be conducted in absentia (Art. 415, K.p.k.). The verdict in writing ex officio and the presence of the defence lawyer during the appeal is obligatory (Art. 416, K.p.k.). After the accused is found he is presented with a certified copy of the legally valid verdict, then within 14 days the accused may apply to the court which made the verdict legally valid to begin a new trial and nullify the previous verdict when the accused presents himself for the hearing (Art. 417, K.p.k.).
5. What protection are afforded the mentally incompetent at criminal trials?
a. If there is a suspicion that the accused may be mentally incompetent, then at least two expert psychiatrists are appointed (Art. 183, K.p.k.). Such an examination is a
rule in the case of homicide and most sexual crimes. It is also, in practice, a rule to appoint a third expert, a psychologist. The psychiatric examination takes place only once. If this examination does not give enough information about the mental health of the accused at the moment of the crime, then he is directed for observation in a hospital (Art. 184 1, K.p.k.). The decision about such an examination is made by the prosecutor or the court, they also determine the place of the examination ( 2). The observation in the hospital should not last longer than 6 weeks, but it may be prolonged for a specified time, "that is necessary to reach an opinion" ( 3). The accused has the right to put forward a complaint to the decision about observation in a psychiatric hospital ( 4).(34)
b. If the accused is mentally ill during the hearing, but was healthy at the time the crime was committed, then the hearing is suspended (Art. 15 1, K.p.k.). If the experts declare that the accused was not capable of recognizing the significance of the criminal act or to control his behaviour "because of mental deficiency, mental illness or other disturbance of the mental function" (Art. 25 , K.k.) it does mean then that he did not commit the crime and the prosecutor decides on discontinuance of the case. In this situation if the prosecutor, on the basis of the opinion of the experts, comes to the conclusion that the accused's remaining at liberty presents a serious danger for the legal order (Art. 99, K.k.), then he applies to the court to order preventive measures at a psychiatric hospital or at another appropriate institution (Art. 282 1, K.p.k.).(35)
6. How is the accused person's entitlement to the free assistance of an interpreter guaranteed, if he or she does not understand the language of the court?
a/b. See B.2.a.
c. The accused has no right to choose an interpreter to officially translate the course of the proceedings to him. He may nevertheless make a request to the court to change the interpreter.
7. What protections exist to guarantee an accused the right to obtain the attendance and examination of witnesses on the accused's behalf under the same conditions as witnesses against the accused?
The hearing is governed by the principle of contradiction. The judge chairing the bench "gives the parties the right to address all matters that pertain to the case and shall be ruled upon" (Art. 316 1, K.p.k.). "If one of the parties raises a matter then all the other parties have the right to address it. The defence lawyer of the accused and the accused himself shall have the last word" ( 2). The introduction of evidence may be objected to by the prosecutor (and vice versa). In this situation the court decides by making a ruling. In the case when the other party does not object, the decision about the evidence is made by the judge chairing the bench (Art. 316). This means that the court has no obligation to accept all evidence that is presented by the accused or his defence lawyer.
8. What guarantees protect the accused's right to examine adverse witnesses?
a. The right of the accused to examine the witnesses is guaranteed by the mentioned regulation of Art. 315, K.p.k.
b. The court decides about the testimony of witnesses and the opinions of persons that are not examined in court on the basis of Art. 315, K.p.k.
c. During the hearing it is possible to read all testimony of witnesses and the accused that have been given during the preliminary investigation or made before the court or during other proceedings stated in the Code "when a direct presentation of the evidence is not necessary and none of the parties object to it" (Art. 338 1). It is also possible to read out during the proceeding the "protocols of visual examinations, search and opinions of institutes, institutions and experts, that have been made during the preparatory investigation or court proceedings" (Art. 339 1, K.p.k.). "It is also possible to read out other documents, especially information about the commission of a crime, data about the criminal record and information of people who knew the accused" ( 2). This implies, especially in the case of subjects who have been convicted before, that in the case when there is no material evidence, the most important evidence for committing, for example, a burglary is the criminal record from the previous convictions and the opinion of the police. The opinion from the people usually is not made by a probation officer, but almost always by the police (Art. 7 and 8, K.p.k.). Frequently there are claims that the policeman has, for personal reasons or because of a conflict with the accused or because he wants to rid his district of undesired people, created a negative opinion about the accused that is not based on facts.
Protocols and documents that are read out during the hearing may be treated by the court as evidence without reading them out but it has to be done "if one of the parties makes such a request" (Art. 340).
d. See B.3.c.
9. How is the accused's right to the presumption of innocence guaranteed?
The presumption of innocence is formulated in the K.p.k. in a manner that does not correspond to the content of Art. 6.2 ECHR. The Polish regulation contains a sentence that has been accepted in communist countries that "the accused is not presumed guilty, before the guilt is not proven in a manner that is described in this Code" (Art. 3 2, K.p.k.) instead of the sentence "shall be presumed innocent until . . . ."
Respect for the rule of presumed innocence is eroding among court authorities, and in local and national public opinion. The limitation of the rule of presumed innocence in courts, apart from the unfortunate sentence in the K.p.k., is also made by other regulations of the K.p.k. that order the prosecutor to determine -- while gathering evidence about the commitment of a crime by a given suspect -- facts that pertain to the person of the accused, his family relations, material assets, education, profession and employment, previous convictions, data about his character, personal conditions and way of life (Art. 8 1). This data may be read out during the trial, as has been mentioned above (Art. 339 2) and therefore is included in the process of determining guilt before the court.(36)
a. See D.2.b.
There is no doubt that police officers through the way of passing information and especially through the scope of information about the case and the accused that they release to the press may influence the final verdict. This information is released to "trustworthy" journalists, who depend on this information. In the practice of Polish human rights NGO's and especially the Helsinki Committee, there are complaints each year in Poland about the police making information public, which indicates that the accused is guilty, and it later happens that the accused is acquitted because he did not commit the crime.
b. Even though the rule of directness prevails, there are however some exceptions which have been mentioned earlier.
c. "Judges, according to Art. 4 1, K.p.k. make decisions based on their conviction about the evidence, taking into account the indications of knowledge and life experience". Nevertheless "the verdicts that structure the 1aw or the legal relation" are binding (Art. 4 2, K.p.k.). The Code therefore does not include rules which enforce accepting some facts as legally proved. The court, however, must explain in writing on which evidence it has based its verdict and why it did not take into account the other contradictory evidence, if one of the parties applies (Art. 372 1 point 1, K.p.k.). The evaluation of evidence also takes place during the appeal proceedings.(37)
d. The civil plaintiff -- in a penal hearing -- may "prove only the aspects on which he bases his claim" (Art. 58, K.p.k.).
10. How is a party to a civil suit guaranteed the opportunity to obtain and examine relevant witnesses at trial?
The civil plaintiff in a penal hearing has the rights of a party and has the right to present motions pertaining to evidence that justify his claim, if this claim arises "directly from the commission of the crime" (Art. 52, K.p.k.).
11. Can evidence be considered against an accused if the evidence is obtained pursuant to an arbitrary or unlawful interference with the accused's or another person's privacy, family, home, or correspondence?
There are prohibitions concerning the presentation of evidence that have been acquired by breaching the law, for example, the testimony of a witness that later has used the right to refuse to testify as a person closely related to the accused (wife). Nevertheless, this prohibition applies only to this evidence. There is no prohibition to use the fruits of a poisoned tree, because it is allowed to "use evidence before the court about fire arms that have been found because the accused has said this even though his right for freedom of speech has been infringed".(38)
12. To what extent does the victim of the offence have the right to paricipate at any stage of the proceedings?
The plaintiff is a "natural or legal person whose assets have been infringed or threatened by crime" (Art. 40 1, K.p.k.). If it is a child or a person who is handicapped, then it has a right to a representative from the office (Art. 42 2). If the victim died, his/her rights are taken over by his closest relatives (Art. 43). After applying for the hearing and before the proceedings are commenced the plaintiff may request to grant him an auxiliary accuser by the court. He then acts in the case as a party (Art. 44). The court allows the plaintiff to act as a party "if it assumes that his participation shall be in the interest of justice" (Art. 45 1, K.p.k.). In the case of petty crimes the plaintiff does present the charges personally, and then he acts in the case as a private accuser (Art. 49-51, K.p.k.). He may also act as a civil plaintiff. In the hearings before the court of the second instance the rights of the plaintiff, apart from those as a private accuser, are narrowed. The auxiliary accuser may appeal "only in the part that pertains to the decision about the guilt" (Art. 395, K.p.k.), and the -- civil plaintiff may appeal "only when prosecutor/accuser or accused did it" (Art. 369 1).
E. Composition of the Court
1. What protection exists to guarantee the independence and impartiality of judges? The already mentioned U.s.p. 1aw determines the guarantees of independence and impartiality of the judges on a higher level than Basic Principles of the Independence of the Judiciary.(39)
U.s.p. (Art. 51) creates demands for high professional skills of a judge, that is he/she must:
(1) present a character without faults and use in full the civil and political rights,
(2) be a graduate of law studies,
(3) be a graduate of a judicial or prosecutorial two year apprenticeship,
(4) pass an examination for judges or prosecutors,
(5) work as a court or prosecutor assessor for at least one year.
The judge may only be a Polish citizen. A professor of law, as well as a person working for at least three years as barrister, prosecutor or solicitor may be appointed as a judge without practice as an assessor (Art. 52, U.s.p.). The judge cannot be a person whose spouse or close relative (up to the second degree) is a barrister (Art. 53, U.s.p.).
The candidates for judges are first of all selected by a district assembly of judges, then the President of a court submits a motion to appoint one of the two candidates as a judge to the National Council of Judiciary (hereinafter Council) through the Minister of Justice, who shall present his opinion. The Council presents one candidate for nomination to the President of the Republic of Poland. This system has functioned since the beginning of 1990. Up until now, there has been no case when the President would not sign a nomination that has been presented by the Council, though in 1995 he delayed for some time the nomination of a judge from a district court whom the Council had wanted to appoint to a Voievodship court. This judge passed a sentence in 1984 in a political matter where the penalty even exceeded what the prosecutor had demanded.
The Constitution (Art. 60.2) and the U.s.p. (Art. 58) guarantee that the judges cannot be removed. The President, after a motion from the Council, may recall a judge who has resigned from his post or has been found by a doctors council to be permanently incapable of fulfilling the duties of a judge or has exceeded 65 years of age (unless the Council permits him to fulfil his duties till his 70th year) or when he has become married to a barrister and has not resigned from his post within 3 months (Art. 59 1, U.s.p.). The President may, after a motion from the Council recall a judge who because of an illness or privilege used leave for a period exceeding 12 months during which he has not worked in this profession, or being a professor ceased working at a law faculty or in an institute of legal sciences (Art. 59 2 and 3, U.s.p.). The judge may also lose the position legally, when the disciplinary court discharges him from his duties or a penal court sentences him with an additional penalty of losing public rights or a prohibition for fulfilling the duties of a judge (Art. 60 2, U.s.p.).
Another guarantee of independence and impartiality of the judge is the permanence of the judge's position. The judge is appointed for an indefinite period of time (Art. 59, U.s.p.), moreover the following rules prevail: non-transferability to a different position or court without permission from the judge (Art. 61 2, U.s.p.); no possibility of other additional work except for research if this does not collide with the duties of the judge (Art. 68 U.s.p.); prohibition to bring the judge before a penal court without the consent of the disciplinary court (Art. 50 U.s.p.); disciplinary responsibility of the judge for infringement of regulations of hearings; and a proportionally higher salary of the judge than that of the average citizen in the country (Art. 71 1, U.s.p.).(40)
There are several guarantees that protect the impartiality of the courts:
(1) The principle of impartiality, that requires the court to take into consideration all positive and negative circumstances concering the case (Art. 3 1, K.p.k.) and the rule excluding the judge by virtue of the law in situations stated in Art. 30 1, K.p.k.
(2) the rule of making verdicts in a panel, with the exception of courts of the first instance, which is discussed below;
(3) the confidentiality of the discussion about the verdict and voting (Art. 95 1, K.p.k.); and
(4) not binding the court with decisions of other courts or authorities during the course of settling a matter. As it was already mentioned in this paper, only legally valid verdicts of other courts, that structure the law or legal relation, are binding (Art. 4 2, K.p.k.).
2. In criminal and civil cases, under what circumstances may a person receive a trial by judge(s), jury, and /or by lay assessor(s)?
The Constitution of 1952 states that "(1) People's lay assessors shall take part in the hearing of cases and in the pronouncement of judges, with the exception of instances defined by law. (2) When adjudicating in courts, the people's lay assessors shall have the same rights as professional judges. (3) People's lay assessors shall be elected . . . ." (Art. 59). The lay assessors only pass verdicts in penal and civil courts of the first instance. "In the sphere of passing verdicts the lay assessors are independent and are only subject to Acts." (Art. 143 1 U.s.p.).
Most of the lay assessors are people who are retired and often do not arrive on the day of the trial. Over many years, the appointing of lay assessors to almost every trial was severely criticised, especially by professional judges. This criticism became even stronger after 1989. The research done by the Institute of Justice at the Ministry of Justice about judges and lay assessors indicated that most of them thought that lay assessors do not have to be appointed for cases concerning economic crimes, petty crimes and the majority of civil trials, except for family matters.(41) Because of the criticism and even more because of the 1ack of people who would like to be lay assessors, there have been several amendments introduced into the civil and penal proceedings in the years of 1994-1995 which made the regulation of the Constitution an exception.
a. Lay assessors, if they pass a verdict in a matter, have the same rights as the judge in respect to the proclamation of guilt and penalty. The main trial and discussion over the verdict are always supervised by a professional judge (Art. 143, U.s.p.).
b. No.
c. Any citizen of Poland may become a lay assessor, when he has use of his full civil and political rights, presents a character without faults, is at least 26 years old and works or lives in the district of a given court for at least one year (Art. 132 1, U.s.p.).
The lay assessors are elected for a period of three years by commune and city councils from among candidates presented by associations, trade unions, plants, and at least 25 citizens who have the right to vote (Art. 136 1 and 139 1, U.s.p.).
The mentioned amendments to the K.p.k. of 29 June 1995 has broadened significantly the scope of the summary proceedings in which the trail is led by one judge. At the same time a President of court has the right to order a case to one judge "in cases where a perpetrator can be sentenced to not more than 5 years of deprivation of liberty" (third sentence added to Art. 19 1, K.p.k.). Therefore, even though the beginning of this provision states "The trial is carried out by a panel consisting of a judge and two lay assessors", the exceptional proceeding, where the case is led by one judge, is becoming a rule as of the date of the amendment (22 November 1995). In cases where a perpetrator can be sentenced to the death penalty, however, the court is always composed of two judges and three lay assessors (Art. 19 2). In other cases, especially difficult ones, a President of court may declare that the case shall be tried by three professional judges (Art. 19 1 sentence 2).
d. Members of a court or a prosecutor office's personnel, barristers, policemen, priests, professional soldiers, prison officers, and employees of authorities that can initiate court proceedings cannot be lay assessors (Art. 133 1 U.s.p.). In labour and social insurance courts only a person who has knowledge of these problems may be elected and candidates to those courts are presented in equal numbers by public authorities and trade unions (Art. 132 2 and Art. 136 2, U.s.p.).
e. The judge may be excluded by virtue of the law from a case, at his/her request or by the motion of one of the parties.
(1) The judge is excluded by virtue of the law from a case when: the case directly concerns him or one of his close relatives (to a degree determined by the Code), after divorce, supervision or care has ended; if the judge was a witness to the crime that is tried, or when he testified in this matter or when he made an appearance as an expert; when he took part in the case as a prosecutor, defence lawyer, policeman, legal or social tutor of one of the parties; when he participated in the proceedings at the court of the first instance, and the verdict was lifted and the trial began anew; and when he issued a warrant for detention during the preliminary investigation (Art. 30 1 and 2, K.p.k.).
(2) At his own request or on the motion of one of the parties "the judge is excluded, if between him and one of the parties there is a relation, that could give grounds for doubting his impartiality" (Art. 31 1, K.p.k.). In the decision about exclusion, the judge does not participate (Art. 32 4, K.p.k.). When such a motion is submitted "the judge refrains from participating in the case: he is obliged however to take actions that cannot be delayed" (Art. 32 3, K.p.k.).
The same rules apply to the exclusions of lay assessors.
f. As I have mentioned before, all cases tried before courts of the second instance are judged by professional judges. It is a rule that there are three judges. It is similar during the cassation proceedings before the Supreme Court. Proceedings before the Main Administrative Court (the court of first instance) are made without the participation of lay assessors, but with 3 professional judges (Art. 44 of the Act of 11 May, 1995 on the Main Administrative Court).(42)
F. Decision, Sentencing and Punishment
1. Under what circumstances must the decision-maker issue a public statement of reasons explaining the decision in public in a criminal case?
The sentence, after it is signed by the judges, is announced to the public by the judge chairing the bench. After the sentence is pronounced, the chairman or one of the judges states orally the main grounds for the verdict (Art. 366 1 and 2, K.p.k.).
2. Under what circumstances must the decision maker issue a public statement of reasons explaining the decision in public in a civil case?
These rules are similar (Art. 326 of the Code of Civil Proceedure of 17 Nov. 1964)(43) (hereinafter K.p.c.) to the proceedings in the penal courts, except that the oral presentations of the grounds of the verdict do not have to be presented, if the case was closed to the public.
3. What rights does a person have to avoid being tried or punished again for an offence of which he or she has already been lawfully convicted or acquitted?
The K.p.k. guarantees that one of the reasons for not initiating a proceeding and quashing the proceeding if they have been initiated is the statement, that "the penal proceedings about the same actions of the same person has been legally finished or one that has been initiated previously is in progress" (Art. 11 point 7).
4. What protection does the accused have from being convicted under ex post facto laws?
Art. 1 of the K.k. provides that "penal liability shall be incurred only by a person who commits a socially dangerous act prohibited under threat of a penalty by a 1aw in force at the time of its commission". "If at the time of adjudication the law in force is other than that in force at the time of the commission of an offence, the new law shall apply, however, the former law should be applied if it is more lenient to the perpetrator" (Art. 2 1, K.k.). If the new 1aw states that the act is not prohibited under threat of penalty anymore, then the sentence shall be expunged by virtue of the law (Art. 2 2, K.k.).
5. What protection is provided against imprisonment for failure to fulfill a contractual obligation?
The Polish law does not permit imprisonment for failure to fulfill contractual obligations.
6. What assurances are given that the judgements rendered in criminal cases and civil suits are made in public?
See F.1, F.2.
7. Under what conditions are judgements not made public?
See D.2.a.
8. Under what circumstances, if any, is collective punishment permitted? What forms of vicarious criminal liability are permitted?
Collective punishment is forbidden. It is also forbidden to hold someone other than the perpetrator accountable.
9. Has the country abolished the death penalty?
Poland has not abolished the death penalty. This penalty is passed about 2-3 times a year, however this penalty is not executed. The last execution took place on the 26 April 1988 and from that time, the sentence of death penalty issued in the first instance was either reduced by a court of the second instance or by the Supreme Court through extraordinary revision of the case. Several of the death penalties where changed to 25 years imprisonment by the amnesty from 7 December 1989.(44)
On 12 July 1995 the Sejm passed an Act that made an amendment to the K.k.,(45) which re-introduced the penalty of life imprisonment, and at the same time declared a moratorium for the death penalty that is to last 5 years. This means however, that courts may pass the death sentence only it cannot be executed.
The death penalty, according to the K.k. can be passed for treason of the country (Art. 122), coup de etat (Art. 123), espionage (Art. 124 1), terrorism (Art. 126 1), sabotage (Art. 127), homicide (Art. 148 1) qualified assault (Art. 210 2) and four military crimes that are made during mobilisation and during war time. Since the K.k. was introduced on the 1 Jan. 1970 the death penalty was passed and executed for homicide and in a few cases of espionage.
c. Every perpetrator sentenced to death has the right to an obligatory pardon proceeding. In a case involving the death penalty, "The court immediately issues an opinion about the matter of the pardon. After the sentence becomes legally valid the court presents the file to the Prosecutor General"(Art. 500 1, K.p.k.). "The Prosecutor General presents the files without delay to the President of the Republic of Poland together with his motion pertaining to the pardon" (Art. 500 2, K.p.k.).
d. The penalty does not apply to persons who at the moment of committing the crime have not yet become 18 years of age, or are pregnant, no matter whether the pregnancy existed before the crime was committed or came into existence later (Art. 31, K.k.).
e. There is no maximum age after which the death penalty does not apply.
f. The K.k. treats the death penalty as "a penalty that is exceptional, given for the severest of crimes" (Art. 30 2). This is also how the matter is treated in the Supreme Court, for example in matters where people under 21 are sentenced to the death penalty.(46)
10. What protection does a convicted person have from punishment that is cruel, degrading, or that involves torture or mutilation?
The limit stated by the Code, beyond which the rights of the sentenced person cannot be "further limited in the enforcement proceedings"(47) are regulated by Art. 7 2 and 3, K.k.w. They state, that "the limitation of the rights of the sentenced person cannot exceed limits necessary for the enforcement of the penalty or taking appropriate measures" and that the "penalty is executed in a humanitary fashion, with respect for the human dignity of the convict". The last regulation is especially important for the prison authorities in respect to the treatment of the sentenced person. From my extensive observations of the situation in Polish prisons, I have found that after 1989 prison personnel are aware of its meaning. The inmates have had since then full freedom to send complaints and even so it is rare that there are any complaints about prison staff behaviour. From the 1,000 complaints that are sent each year by the prisoners to the Helsinki Committee for Human Rights, the majority of the complaints concern the very long and not impartial management by the prosecutor's office or the court as well as complaints about the police. Since 1990 the prisoners have a legal instrument to protect their rights. This is the mentioned Art. 14a, K.k.w. and allows them to make complaints to the court about each decision of the penitentiary authorities that allegedly breaches the law.
The factor most seriously affecting the rights of Polish prisoners is not their treatment, but the condition of Polish prisons. One Hundred out of 153 institutions require an immediate renovation, according to a report of the Ombudsman, and 10 should be immediately closed. In these prisons most of the buildings, installations and equipment is extremely poor.(48)
11. May the court inflict, or may the prosecution advocate, a more severe penalty on the basis of the way the accused defended himself?
The behaviour of the accused may have, and often has influence on the sentence. Article 50 2, K.k., giving directions for the manner of giving the sentence, orders the court to "especially" take into account the manner of behaviour of the culprit after the commitment of the crime. This also refers to such behaviour of the perpetrator which would have influence on the reduction of the sentence such as remorse, pleading guilty to the commitment of the crime, revealing information to the police, and also behaviour that influences the raising of a sentence such as hiding evidence, false accusations of others, not helping a victim of a traffic crime. Nevertheless, not pleading guilty and not showing remorse is not treated as something that increases the sentence, because it is a part of a right to defence; also not repairing damages cannot increase the sentence.(49)
G. Appeal or Other Review in Higher Courts
1. How does a person convicted of crime have his or her conviction and/or sentence reviewed by a higher court?
a. The K.p.k. states in Art. 387, that the basis for an appeal in the second instance, from the verdict of the first instance, may be the following:
(1) infringement of the substantive law, i.e. sentencing for a crime that does not exist or for a different crime;
(2) infringement of the rules of the proceedings, if it could have influenced the verdict;
(3) error in the facts, that have been accepted as a basis for the verdict, i.e. not looking into all the facts that were significant, logical error in the thought of the court;
(4) significant disproportion of the penalty or unjust use of a preventive measure or other measure. This mainly means the disproportion between the sentence and other sentences passed in similar matters.
There are errors in the courts of the first instance, that 1ift its verdict irrespective of whether the matter was raised during the appeal (Art. 388, K.p.k.). They are the following:
(1) passing a sentence by a person or judge who is not authorised, or by an unauthorised court;
(2) the absence of one of the members of the court during the whole trial, or the failure of all judges to sign the verdict;
(3) pronouncement of a penalty that is not known in 1aw;
(4) lack of a defence lawyer on the side of the accused, whose presence was obligatory, by which the accused was deprived of the right to defence;
(6) the use of immunity by the culprit or when he has died, or when the time for penal pursuit has expired, or when he was accused by an unauthorised prosecutor, or the case has already been previously tried.
b. The first step for the appeal is the motion made by the accused or his defence lawyer for the presentation of the justification of the verdict in writing. They have 7 days from the day when the sentence was pronounced (Art. 370 1, K.p.k.). Next, after the presentation of this justification, they have 14 days to make an appeal in writing (Art. 393 1, K.p.k.).
c. There are no limitations, as to the type of the crime when applying for an appeal. The court has 7 days for presentation of this justification in writing (Art. 371 1, K.p.k.). In complicated cases this term may be prolonged by the President of the court for an indefinite period of time.
d. The matter of the appeal may refer to the law and to the facts, the guilt and/or the sentence (Art. 374-408, K.p.k.).
e. In the appeal proceedings the defence lawyer's participation is regulated by the same rules as in the court of the first instance, but the appeal from the sentence of a Voievodship court (see answer to question C. 1) has to be made and signed by a defence lawyer (Art. 394 1, K.p.k.).
f. The prosecutor has full right to appeal against the sentence of the court of the first instance both about the guilt and the penalty (Art. 394 1, K.p.k.).
g. No.
2. May a person appeal a judgement from a civil suit?
The civil plaintiff may appeal the sentence "only when the sentence was appealed against by the accused or the prosecutor" (Art. 396 1, K.p.k.). He may appeal "only about sentences that infringe his rights or harm his interests" (Art. 374 3).
The manner of making an appeal in a civil case (Art. 367-398, K.p.c.) is similar to that in the penal trial.
3. In criminal cases and civil suits, at what point in the trial may a party appeal an intermediate decision rendered prior to the final judgement?
During the course of the trial the parties have the right to appeal against decisions that make it impossible to pass a sentence and in other matters mentioned in K.p.k. (Art. 409). The appeal against such decision must be made within 7 days (Art. 410). The appeal does not stop the execution of the decision, unless the court that is looking into the matter decides otherwise (Art. 411 1 and 2). The appeal may be considered by the court which issued the decision, and in other cases it passes the matter to a court of a higher instance without delay (Art. 412 1 and 2, K.p.k. Proceedings).
Similar rules apply in the civil process (Art. 394-398, K.p.c.).
H. Pardon, Amnesty and Expungement
1. What assurances does every convicted person have to the opportunity to seek pardon or commutation of his or her sentence?
Every convicted person, their defence lawyer, "next of kin, adopter or adoptee, siblings, the spouse of the convicted person and the collective body of workers" have the right to motion for pardon (Art. 492, K.p.k.). First, the case is heard by the first instance court that issued the verdict (Art. 493, K.p.k.). In its consideration, the court takes note of the convicted person's health and behaviour-related facts which took place during the execution of the sentence (Art. 495). The court drops the case, or submits it to a higher instance court, as long as the latter has looked into the case, in which event it attaches its opinion and presents the case to the Prosecutor General (Art. 497 1 and 2, K.p.k.). The Prosecutor submits the case to the President of the Republic if courts of both instances or the Supreme Court of Justice, or the court of appeal spoke in favour of pardon, or in another event only if it finds it appropriate (Art. 498 1 and 2, K.p.k.). Subsequently, the Prosecutor General submits the case to the President of the Republic. The Prosecutor may present the case to the President ex officio, without the courts' opinion (Art. 499 1, K.p.k.). The President exercises the right to pardon. The President may not grant pardon without the Prosecutor General's opinion (Art. 498 3, K.p.k.). Under his constitutional prerogatives, the President makes the decision to pardon (Art. 43 of the Small Constitution), however the act of pardon requires the Minister of Justice's endorsement (Art. 46 and 47 of this Constitution). The Minister of Justice also holds the post of the Prosecutor General, therefore the authority to pardon is largely in his hands. Pardon may apply to the entire punishment, mitigation of part or substitution, e.g. of incarceration by probation with specific conditions imposed on the convicted person's behaviour.
During his 5 years in office in 1990 to 1995, Lech Walêsa, President of the Republic of Poland, granted pardon to 3,680 convicted persons and refused pardon to 451 individuals.(50)
Much more frequently than pardon, a conditional advance release from confinement is used as a form of mitigation of punishment. The conditional release is granted by the penitentiary court if there is a reasonable "assumption, that the perpetrator will observe the legal order, and in particular will not commit the offence again and the purpose of the punishment will have been attained despite an incomplete execution of the sentence" (Art. 90 1, K.k.). Persons convicted for unintentional offences, juvenile delinquents, guardians of children under 15, women aged over 60 and men aged over 65 have the right to submit the first motion for a conditional release having served one third of the sentence, with the proportion being three fourths for multiple recidivists, two thirds for recidivists, and a half for others, however in any event not earlier than after a minimum of 6 months of service (Art. 91 1-5, K.k.). A life sentence convict may be released after 25 years of confinement (Art. 92a), while a person with a 25-year sentence may be released after 15 years, unless he used the dates determined in Art. 91 (Art. 92, K.k.). The time left until the end of the sentence becomes the period of probation. However, the period in question may be not shorter than one year and not longer than five years. If the sentenced person is a juvenile, the probation period may not end before he turns 21. In the case of recidivists, the probation period may not be shorter than 3 years, with 10 years for persons with a life sentence (Art. 93 1-3, K.k.). In its decision to apply a conditional release, the court may require surety from an individual or a social organisation, impose the obligation of a specific type of behaviour and administer supervision from a probation officer (Art. 94, K.k.). Petitions for a conditional release may be submitted by the convicted person, their defence lawyer, or head of the penitentiary institution (Art. 6 1, Art. 78 1-3, K.k.w.).
In 1994, a total of 33,325 conditional release motions were submitted, of which almost a half (45.2%) were submitted by prison administration. The courts have decided to release conditionally 24,138 prisoners (72.4%), of which they most often applied to those submitted by prison administration (93.7% of prison administration's motions). In almost every instance of conditional release, the courts appointed a probation officer (23,420 cases) and frequently imposed the obligation to maintain abstinence from alcohol abuse (20,250) and undertake income-earning work, education or preparation for an occupation (20,650).(51) Given unemployment prevailing in the offenders' social background, this is an evidence of a mechanistic treatment of cases by penitentiary courts.
A temporary leave from penal isntitutions is another form of mitigating the punishment of deprivation of liberty. The penitentiary court is obliged to grant a temporary leave in the event of a mental disease or another severe ailment which makes it impossible for the convict to serve the punishment (Art. 65 1 in re1. to Art. 68, 1, K.k.w.). Moreover, the court may grant a temporary leave of up to one year if "this may be attributed to a particular general interest or important health or family circumstances" (Art. 68 1, K.k.w.). In 1994, the courts considered 14,199 convicts' motions for a temporary leave, of which 5,580 leaves were granted (39.3% of the total number of motions), including 2,162 temporary leaves due to an illness, and the remaining 3,148(52) for other reasons.
The adjournment of a fine, or a fine installment payment plan if "an immediate collection would entail consequences of too serious a nature for the convicted person or his family" (Art. 155, K.k.w.) are an important form of punishment mitigation for a number of convicted persons. "In exceptional, particularly justifiable" cases there is a possibility for the court to remit the fine altogether (Art. 1551, supplemented to the K.k.w. in 1995).
2. What other provisions are there for amnesty, expungement, or similar procedures?
Amnesty is a parliamentary prerogative. The initiative to enact an amnesty law is in the hands of Members of Parliament, senators, the President of the Republic and the government. Under the ancien regime, amnesty was enacted every five years to commemorate subsequent anniversaries of the communist rule, but primarily in order to release prisons which were overcrowded beyond reason. As mentioned above, the latest amnesty was enacted on 7 Dec. 1989, in the wake of inmate revolts. There is a common agreement that amnesty is the worst possible criminal policy. Therefore, one should not expect a similar undertaking in the future, even under post-communist governance.
The criminal code provides for expungement, i.e. declaration of the conviction to be null and void, which entails deletion of a relevant entry from the register of convicted persons (Art. 110). By virtue of the law, a conviction is expunged after 10 years "following execution or pardon of the conviction to imprisonment or limitation of enforcement" (Art. 111 1, K.k.). Upon the convicted person's motion, the court may declare that such a conviction be expunged after 5 years, "if within that period, the convicted person has observed the legal order and the punishment of deprivation of liberty did not exceed 2 years ( 2)." However, if the convicted person has been released from imprisonment conditionally, the conviction is subject to expungement 6 months after the probation period by virtue of the 1aw (Art. 79, 2, K.k.). Other punishments are subject to expungement by virtue of the 1aw after 5 years (Art. 111 3).
I. Other Remedies
1. What judicial or other legal remedies does a person have for a violation of fundamental rights?
As of 1 January 1996, each party to criminal proceedings at court (solely with the intermediation of a solicitor/barrister) and the prosecutor may lodge a cassation complaint to the Supreme Court from a valid and binding sentence of a court of appeal (Art. 463 1 and~Art. 464 1, K.p.k.). Cassation may be sought on account of transgressions listed in the aforementioned provision of Art. 388 of the K.p.k., or other "blatant breach of 1aw, if it could have had an impact on the content of the sentence". Cassation may not be sought on account of incommensurability of punishment (Art. 463a 1, K.p.k.). A complaint which does not comply with formal requirements is dismissed by the court of appeal, whilst the final decision is taken by the Supreme Court (Art. 467 1-2, K.p.k.). Likewise, the Supreme Court dismisses an "obviously groundless" cassation complaint ( 3). The Supreme Court of Justice expects some 5,000 cassation complaints to be lodged annually.
A complaint filed to the European Human Rights Commission in relation to the breach of ECHR provisions has become a more important remedy in protection of basic rights and freedoms. Between 1 May 1993 and 31 December 1995, the Commission received 2,531 complaints against the Polish authorities in relation to breach of some of the rights protected by the Convention. Within that period, the Commission registered nine of those complaints.
2. Under what circumstances, if any, can the right to habeas corpus, amparo, or similar remedies be suspended?
The law does not provide for such possibilities.
3. When a person has been convicted and punished of an offence and that conviction is subsequently reversed, or the person is pardoned due to new evidence showing that there was a miscarriage of justice, what recourse does the convicted person have to receive compensation for the injury suffered?
As required under the provision of Art. 487 1 of the K.p.k., "the convicted person, who has been acquitted or convicted under a less severe provision in result of renewal of proceedings or cassation, has the right to receive indemnification from the Treasury for the damage incurred and compensation for the injury suffered which resulted from execution, in part or in whole, of a punishment which should not have been administered upon him." This provision applies, respectively, to a preventive measure (Art. 497 3, K.p.k.) and "in the event of obviously unfair temporary detention or arrest" ( 4). Damages may be sought within one year from the occurrence of circumstances which form the grounds for compensation, with the same period being 3 months in the event of an obviously unfair detainment (Art. 499, K.p.k.). In the event of death of the entitled person, the right to damages is transferred to his closest persons (Art. 490 1-2, K.p.k.). A foreign individual may enjoy this right on the principle of reciprocity (Art. 491, K.p.k.).
4. What remedies are available for pre-trial detention when the person is not convicted? See rep1y to Ad. I.3.
5. What remedies are available for a person to vindicate a violation of a fundamental right guaranteed by the constitution or other law?
a/b. See reply to Ad.I.1 and I.3.
c. In the event of breach of any of the inmates' rights, e.g. the right to adequate sanitary conditions, in result of which an inmate may develop tuberculosis, he is entitled to file a lawsuit under the Civil Code. Pursuant to Art. 417 1 of the Civil Code, "The Treasury shall be liable for a damage done by a civil servant upon performance of an activity he is entrusted with." In 1994, civil courts of law issued 108 verdicts in such cases filed by inmates, of which 12 resulted in decisions to compensate damages.
J. Procedures for Juveniles
1. What distinction is drawn between juvenile proceedings and adult, or criminal proceedings?
Under the K.k., a person under the age of 17 is considered juvenile.(53) Court proceedings against a juvenile person are conducted pursuant to the basis mentioned in Ad. D.2.b. of a separate 1aw of 1982 -- P.s.n.; K.p.k. may be used only on an auxiliary basis. The basic distinctions are:
1. Proceedings in a juvenile case are held before a family court.(54) This excludes the possibility of the case being heard by the prosecutor and approximates the trial in such a case to the model of the English-speaking countries. Educational and care proceedings before the family court are regulated by K.p.c. non-litigious proceedings, whilst correction proceedings and proceedings in the case of collection of evidence by the police are regulated by the K.p.k. (Art. 20, P.s.n.). However, the Law allows for a family court to assign explanatory activities to the police (Art. 37 1, and Art. 39, P.s.n.). In practice, in most cases it is the police, not family courts, who interrogate the juvenile person and witnesses and collect other evidence.
2. The jurisdiction of the family court depends upon the juvenile's domicile (Art. 17 1, P.s.n.).
3. Proceedings against a juvenile are held if he perpetrates a punishable act or if he exhibits manifestations of demoralisation (Art. 2, P.s.n.).
4. Parties to proceedings are exclusively the juvenile, parents or guardians of a juvenile person, and the prosecutor (Art. 30 1, P.s.n.).
5. In the case of a juvenile, one should be primarily guided by actions for his good (Art. 3 1, P.s.n.). A juvenile is heard "in circumstances similar to natural ones, in the juvenile's domicile if required, whereby one should avoid having to hear the juvenile person many times on the occasion of the same circumstances or circumstances established by evidence which no longer raise doubts" (Art. 19, P.s.n.).
6. In each case, the juvenile "must have a defence lawyer" (Art. 49, P.s.n.).
7. A court hearing is held with the exclusion of openness, unless openness is justifiable for educational reasons (Art. 45 and 53 1, P.s.n.).
8. Educational measures are applied towards a juvenile, and if he is not more than 13 years of age, the court may decide that he be placed in a corrective institution (Art. 5 and 10-11, P.s.n.).
2. What special procedures exist for juvenile offenders? See the reply to Ad.J.1.
3. What special procedures, if any, apply to juveniles in civil proceedings?
A juvenile, i.e. a person under 18 years of age, who does not have the complete capacity to legal actions "may undertake trial actions only by means of a statutory representative" in civil proceedings (Art. 66, K.p.c.).
4. What protection does a juvenile offender have from the imposition of corporal punishment?
The Polish law related to juveniles does not provide for the admissibility of corporal punishment.
5. How are accused juveniles treated differently from accused adults?
In connection with a reasonable suspicion of commitment of a punishable act, a juvenile may be detained for not more than 48 hours in a police centre for child care, if he requires "immediate care for a period which is necessary for the establishment of his/her identity and commitment to parents or a guardian, or an emergency child care home" (Art. 102, 1, P.s.n.). Detention should not exceed 72 hours. "A longer detention of the juvenile is allowed solely under consent of a family court judge for a determined time not longer than 14 days" ( 2). It is noteworthy that the provision of Art. 102 of the P.s.n. is of a temporary character, since it is to provide until "a sufficient network of emergency child care homes is established" ( 1. 1). However, as is the case with many provisions thus enacted in Poland, it has been in force for 13 years and there is no news of a development of "a network of emergency child care homes" which would be under the auspices of the educational system, rather than the police.
If "circumstances are disclosed which would speak for commitment to a reformatory, and there is a reasonable fear that the juvenile seeks cocealment or erases traces of the act, or if the juvenile's identity may not be established," the family court may commit him to a juvenile delinquents hostel (Art 27, 1 and 4, P.s.n.). Hostels are responsible to the Justice Ministry (Art. 95, P.s.n.), however they are not managed by the prison administration. Hence, there is no possibility for a juvenile and adult offenders to be placed not only in the same cell, but even in the same institution. Commitment to a remand institution for juveniles may not exceed 3 months (Art 27, 2, P.s.n.), however, "If, due to special circumstances of the case, there is a necessity to extend the time of the juvenile's commitment to the hostel, it may be extended for a period not in excess of another 3 months." (3)(55)
6. Are accused juveniles in detention segregated from juveniles who have been found responsible from criminal conduct?
Remand institution for juveniles are separate from corrective institutions and educational institutions.
K Military Courts
1. How do procedures in military courts differ from the procedures in ordinary criminal courts?
Proceedings before a military court are held pursuant to K.p.k. provisions.
2. To what extent are the procedural protections, identified above in parts A - J, provided in military courts?
See reply to Ad. K.1.
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