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Constitutional Tribunal: right to defence laws for petty offenders unconstitutional

Under the current rules of procedure applicable in petty offence cases, a person accused of committing a petty offence has no ability to seek advice from counsel at the preliminary stage of the proceedings. The provisions in question also fails to grant the accused access to case files. Last week, the Constitutional Tribunal’s ruling declared these laws unconstitutional.

The Tribunal jointly heard two motions of the Human Rights Defender who argued that the Constitution of the Republic of Poland guarantees the right to defence at all procedural stages for all persons accused in criminal proceedings. The Constitutional Tribunal has many times reiterated that the constitutional right to defence should be widely construed and applied in all types of criminal justice proceedings, including cases involving petty offences.

Under the current law, a person accused of committing a petty offence has no access to a defence lawyer at the preliminary stage of the proceedings, before their case goes to court. Also, the practice of the Human Rights Defender has revealed a general problem which results from the absence of regulation on accessing case files at the preliminary inquiry stage of petty offence cases.

The Open Society Justice Initiative, an international human rights advocacy group, has submitted an amicus curiae brief in the case. The organisation emphasised that the current petty offence laws grossly violate the right to a fair trial guaranteed under the European Convention on Human Rights, International Covenant on Civil and Political Rights and violates other international standards.

Under the heading of the Stockholm Programme, the EU adopted a number of directives aiming to advance procedural rights of suspects and accused persons as well as victims of crime. The Directive of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings provides that States must ensure the accused has access to a lawyer at all stages of the proceedings, including before the first police interview. This right is also to apply in petty offence cases.

“The EU Member States have already been obliged to ensure the effective right to defence in both criminal proceedings and petty offence proceedings”, says Irmina Pacho, HFHR’s lawyer. “The judgment of the Constitutional Tribunal proves that the Directive has also been implemented in cases involving petty offences. The final deadline for the Directive’s complete implementation expires on 27 November 2016”, adds Ms Pacho.

The hearing was observed by Zaza Namoradze, Director of the Budapest Office of the Open Society Justice Initiative.


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