Are provisions of the Petty Offences Procedure Code constitutional?

In June 2011 the Human Rights Defender (RPO) filed a motion with the Constitutional Tribunal (TK) to conduct a constitutional review of article 4 of the Petty Offences Procedure Code. Pursuant to the challenged article a person suspected of committing a petty offence has no right to a lawyer until a motion for penalty is filed with the court. The Open Society Justice Initiative has submitted an amicus curiae brief in the case.

It argues there that article 4 is a manifest breach of 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.

“A person’s right to consult with a lawyer privately before any questioning by police is a vital element of any properly conducted criminal defence. Without a system in place guaranteeing access to counsel people are not given a fair chance to defend themselves”, says Zaza Namoradze, Director of the Budapest Office of the Open Society Justice Initiative.

The Polish Constitution provides that ‘anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself, in accordance with principles specified by statute, of counsel appointed by the court’.

The RPO argues in his motion: ‘The Constitutional Tribunal has noted many times that the constitutional right to defence ought to be construed broadly as this right is not only a primary principle of the criminal procedure but also a basic standard in a democratic state ruled by law’.

We would like to remind that in February 2010 the Helsinki Foundation for Human Rights brought this issue to the Chief Commissioner of the Police. The Foundation highlighted that it was common practice to deny a suspect access to a lawyer during the investigative stage of the petty offences procedure. That practice has been developed on the basis of an order by the Chief Commissioner of the Police.

The latter stated in his response that the order in question included no provisions that would hinder ‘the presence of an advocate or a legal advisor during the questioning of a person against whom there are reasonable grounds to draw up a motion for penalty’. However, the Commissioner underlined that at that stage the lawyers ‘may not assume the procedural role of counsel for the defence’.