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Correction of defective legal guidance notice may violate right to fair trial

The HFHR has asked the Commissioner for Human Rights and the Institute of Justice to investigate the abuses that have reportedly been caused by corrections of obvious clerical errors in trial transcripts. The Foundation also asked the two bodies to review whether such practices of courts may violate procedural safeguards available for individuals.

The HFHR decided to step in after receiving a complaint from S.J., whose case involved the cancellation of parole. The transcript of a court’s session included an error in the guidance note about the time-limit for the submission of an appeal against a court order. The time-limit was seven days from the pronouncement of the order, and not from its delivery in writing, as S.J. was mistakenly informed. In consequence of having received the misleading guidance note, S.J. did not submit an interlocutory appeal on time, waiting for the order to be first delivered in writing. Later, S.J. filed a motion to extend the deadline for filing the interlocutory appeal, but the motion was denied by a court, which ruled that the only reason for the defective guidance note in the transcript was an obvious clerical error. At the same time, the court ordered the correction of the error which appeared in the section of the transcript that included guidance on time-limits: the word “delivery” was thereby replaced by “announcement”. The correction was made after 10 months from the parole cancellation hearing.

So far the Supreme Court’s (and the legal scholarship’s) reasoning was that a declaration of an obvious clerical error should be used only in cases whose circumstances clearly and unequivocally indicate that the error does not result from an intentional act. “The abuse of remedies against obvious clerical errors may endanger, in a number of different ways, the procedural guarantees for individuals”, comments Katarzyna Wiśniewska, an attorney of the HFHR.30

The HFHR argues that a modification of the information about the procedure and timeframes for submitting appellate measures that appears in trial transcripts by way of declaring it “an obvious clerical error” is difficult to accept from the perspective of the right to a defence. Such a correction also violates the rule expressed by the Code of Criminal Procedure according to which all participants in proceedings should be informed about their rights and duties. “There is another rule in Polish law: participants in legal proceedings are not liable for the consequences of erroneous guidance notes. If a court may change the content of a transcript in order to remove a prior error, this rule will become nothing more than a pretence”, concludes Michał Kopczyński, a lawyer working with the HFHR.

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